The opinion of the court was delivered by: YOUNGDAHL
Plaintiffs seek a preliminary injunction enjoining the operation of a liquor store at 4881 MacArthur Boulevard, alleging that the license was not granted in conformity with the District of Columbia Alcoholic Beverage Control Act.
The relevant portions of the Act with which the Court will be concerned in this opinion are as follows:
'(a) Any individual, partnership, or corporation desiring a license under this chapter shall file with the Board an application in such form as the Commissioners may prescribe, and such application shall contain such additional information as the Board may require * * *. 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 character 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.
'(b) Before granting * * * a retailer's license, * * * the Board shall give notice by advertisement. * * * There shall also be posted by the Board a notice, in a conspicuous place, on the outside of the premises. This notice shall state that remonstrants are entitled to he heard before the granting of such license and shall name the same time and place for such hearing as set out in the public advertisement; and, if remonstrance against the granting of such license is filed, no final action shall be taken by the Board until the remonstrant shall have had an opportunity to be heard, under the rules and regulations prescribed by said Board. * * *
'(c) * * * no place for which a license under this chapter has not been issued and in effect on the date the written objections hereinafter provided for are filed, shall be deemed appropriate if the owners of a majority of the real property within a radius of six hundred feet of the boundary lines of the lot or parcel of ground upon which is situated the place for which the license is desired, shall, on a form to be prescribed by the Commissioners filed with the Board, object to the granting of such license. * * * This subsection shall be construed as a limitation upon the discretion of the Board in granting a license and not as a limitation upon the discretion of the Board in refusing a license * * *.' D.C.Code, Title 25, Sec. 115, 48 Stat. 327-329, ch. 4, § 14.
The facts giving rise to the present motion are as follows:
For some time, various liquor dealers have sought permission from the Alcoholic Beverage Control Board to operate a liquor store along MacArthur Boulevard. By means of consistent, organized protest, both as individuals and as the Palisades Citizens Association, Inc., the residents of the area had successfully prevented any such establishment from gaining a license. The vehemence and duration of the protest is best seen in an opinion of the Board in denying an application for a Class 'A' license at premises 5432 MacArthur Boulevard in 1955. The Board said:
'(9) That the records of this Board show that for the past twenty years the residents and property owners along MacArthur Boulevard have strongly opposed the placing of a package store in the neighborhood. Repeated filing of applications has had the result of harassing these people and imposed an unwarranted burden and cost upon these citizens and upon the several Departments of the Municipal Government. Unless any future prospective applicant for such license in this area should first obtain definite evidence that a great majority of the residents and property owners of the immediate neighborhood actually favor a Retailer's Class 'A' License therein, such prospective applicant may well expect any application for such license will be denied by the Board.
'(10) Prior to this hearing these applicants were warned of the neighborhood sentiment, and it is amazing that they proceeded with this application having so little support for it. The Board believes that before an applicant is again afforded a hearing for a license in the MacArthur Boulevard area such an applicant should first be required to submit evidence which would reasonably indicate a definite change of sentiment in the neighborhood. * * *'
It should be noted that Bassin (the dominant voice of the defendant MacArthur Liquors, Inc.) had applied for a license in the area three times during the past four years.
On October 29, 1957, by a vote of two to one, the Board granted a liquor license for the premises 5136 MacArthur Boulevard. Over four hundred people had protested, but the Board granted the license saying, 'by the best means available to it the Board has ascertained that within this neighborhood there is an adult population of approximately 1,700 persons, and the Board finds further that those persons who did not voice objection to the issuance of this license outnumbered by about three to one those who protested its issuance.'
The Palisades Citizens Association, Inc., one of the plaintiffs in this case, sought review of this action of the Board in a case now pending before the Court of Appeals for the District of Columbia. The District Court held that the Association did not have the capacity to sue, but did not go into the merits of the Board's determination.
The sole stockholder of MacArthur Liquors, Inc., the successful applicant for the premises at 5136, died and all of the stock, except one share, was transferred to Aaron Bassin and his wife to hold as tenants by the entirety.
A short time later, MacArthur Liquors, Inc., filed an application with the Board to transfer its license to 4881 MacArthur Boulevard. The residents of this area circulated petitions and some four hundred twelve persons protested the transfer. These signatures were obtained on two different forms provided by the Board. These forms are identical in almost all respects. The significant difference, as the Board saw it, was that one, in its preamble, recited that the undersigned 'residents and/or owners' object to the issuance of a license 'under Section 14(a-5)', while the other states that the undersigned 'being the owners of the real property' protest 'under Section 14(c) of the District of Columbia Beverage Control Act'. The 14(a-5) petition then has on each line a place for the petitioner's name, a space to fill in either 'owner' or 'resident', the number of the square or parcel, the lot, and the address. The 14(c) petition has a place for the petitioner's name, the square or parcel number, the lot, and the address. There is no space on this form to state whether the signer is a resident or owner.
At the hearing held in accordance with the statute, two questions were raised with respect to the signatures on the petition. The protestants argued that the word 'owners' in Section 14(c) should include tenants. The Board interpreted the statute not to include possessors of only leasehold interests.
The protestants further alleged that a majority of the property owners, even excluding tenants, had signed against the liquor store, but that some had signed on one form, some on the other. The Board held that the statute limited protests with respect to 14(c) to the one form prescribed by the Board and excluded from consideration on the 14(c) question all petitioners who had signed on the 14(a-5) form.
On the 14(a-5) issue there was submitted to the Board fifteen
letters in favor of the transfer. Five of these letters were solicited by the applicant and about half of the unsolicited letters seem motivated more by their desire to have the store removed from its present location at 5136 rather than a positive sentiment in favor of a liquor store at 4881. Thus the letter of Frederick R. Pettis says: '* * * I believe the new location is the proper site for a liquor store. Its present location is more of a residential area than the heavy commercial area in the 4800 block of MacArthur Boulevard. * * *' Another example is that of Charles E. Perry: '* * * Recently I have purchased a home at 5225 Manning Place, N.W. and, from a personal viewpoint, this liquor store in the commercial district would not be as objectionable as it is in its present location. * * *'
After the hearing was over, the Board drove about to survey the neighborhood. However, it is unclear to the Court how large an area was inspected. They returned to their office and took out maps and on the basis of these and of their survey, delineated what they considered to be a 'neighborhood' within 14(a-5). They then counted the number of houses in the neighborhood thus delineated. A call to the Bureau of the Census by someone in the office resulted in the use of the factor 2.4 to determine the number of adults in the neighborhood. On the basis of this computation, the adult residents of the neighborhood were postulated at 929. The petitions were turned over to the Board's analysis section which checked how many property owners had signed the 14(c) form and how many residents of the 'neighborhood' had signed both forms. It was determined that only 20% of the property owners had signed the 14(c) form and thus validly protested under 14(c) and 44.4% of the 'neighborhood' had registered objection under 14(a-5).
The Board granted the transfer, saying: