Beverly Grill, Inc., v. Crow

• Decision Date: 22 November 1949
• Docket Number: 10180.
• Citation: 57 S.E.2d 244,133 W.Va. 214
• Parties: BEVERLY GRILL, Inc. v. CROW.
• Court: West Virginia Supreme Court

57 S.E.2d 244

133 W.Va. 214

BEVERLY GRILL, Inc. v. CROW.

No. 10180.

Supreme Court of Appeals of West Virginia.

November 22, 1949

July 28 1949

Submitted July 25, 1949.

Dissenting Opinion Jan. 12, 1950.

Syllabus by the Court.

Mandamus lies to control the action of an administrative officer in the exercise of his discretion when such action is arbitrary or capricious.

F. Duane Hill, Charleston, for petitioner.

Ira J Partlow, Atty. General, Eston B. Stephenson, Asst. Atty Gen., Robert B. Goodwin, Ripley, for defendant.

Joseph A. Blagg, Charleston, and John C. White, Charleston, as amicus curiae.

HAYMOND, President.

The relief sought by the petitioner, Beverly Grill, a corporation, in this original proceeding, is a writ of mandamus to compel the defendant, Burton Crow, Nonintoxicating Beer Commissioner of West Virginia, to issue to it a retail nonintoxicating beer license, Class A, at its place of business in Huntington for the fiscal year beginning July 1, 1949. The facts are not disputed and the legal question presented is whether an applicant for a license of the character indicated, who is a suitable person, operating in a lawful manner an establishment which is suitable in its physical features, may be refused such license because numerous citizens of the community in which the place of business of the applicant is located oppose the application.

On July 28, 1949, this Court awarded a writ of mandamus as prayed for by the petitioner. The reasons for its action in granting the writ are now set forth in this opinion.

Despite the protests of citizens of the community, the commissioner, in 1948, after being advised by the Attorney General, whose opinion he had requested, that a license might not be refused for that reason, granted the application of the petitioner and issued to it a Class A license for that year. The license granted in 1948 limited the applicant to the sale of beer in its original containers with permission that it be cooled but not consumed on the licensed premises. On June 4, 1949, the petitioner applied for a similar license with the same restriction for the fiscal year which began on July 1, 1949. Its application was in proper form and was accompanied by the requisite fee and bond.

By letter dated June 27, 1949, the defendant declined to issue the requested license. His letter of refusal, though conceding the suitability of the applicant and of the 'physical aspect' of its building and equipment, contained these statements as the basis for the denial of the license by the defendant: 'The location, however, in view of the continuous stream of letters, telegrams, petitions and telephone calls from the citizens living in the community surrounding the establishment * * * protesting the issuance of said license because of its proximity to the churches and schools in the locality, becomes the pertinent question. In view of these protests, the dominant question is:--Should a license be issued for the operation of a beer outlet in a community in which a great number or majority of citizens feel the outlet is too close to its schools and churches? The answer to this question, as in every question where a school or a church is involved, rests upon the sound discretion of the Commissioner and his discretion should be based upon the facts presented to him and in the light of the general attitude of the citizens of the community. We agree that we have many licensed outlets closer to schools and churches than the outlet in question. However, the citizens of those communities have not protested their operation. In the present case, although the schools and churches are approximately 200 feet from the outlet, we feel it is too close, and, therefore, decline to issue the license.'

From the foregoing statements it is obvious that the defendant, in the exercise of his discretion, gave recognition to the wishes of the citizens of the community in administering the statute which legalizes the sale of nonintoxicating beer in this State instead of following its provisions.

The statute regulating the sale of nonintoxicating beer, Chapter 12, Acts of the Legislature, 1937, Regular Session, as amended by Chapter 15, Acts of the Legislature, 1945, Regular Session, provides, in Section 12, Article 16, that 'A license may be issued by the commissioner to any person who submits an application therefor, accompanied by a license fee, and, where required, a bond, stating under oath' certain detailed information. It further provides, in the same section, that 'The commissioner may refuse a license to any applicant under the provisions of this act if he shall be of the opinion: (a) That the applicant is not a suitable person to be licensed; or (b) That the place to be occupied by the applicant is not a suitable place; or (c) That the license should not be issued for reason of conduct declared to be unlawful by this act.'

Unlike the Pennsylvania statute which empowers the licensing authority to grant or refuse a license for a place within three hundred feet of a church or a school, the present statute does not provide that an applicant who occupies a place within a specified distance from a church or a school may, for that reason, be denied a license. Though the statute is silent on that subject, a regulation, 3(a), promulgated by the commissioner by statutory authority, provides that a retail beer license may be refused 'establishments in reasonable close proximity to churches, schools, state institutions, privately operated charitable or eleemosynary institutions.'

It is clear that the applicant has fully complied with all the applicable requirements of the statute. That it has done so is conceded. The defendant also in effect admits, in the letter already quoted, that the applicant and the place are suitable and he makes no suggestion that the license should be denied because of any unlawful conduct by the applicant.

The authority of the commissioner to promulgate and enforce the regulation in a situation to which it applies and the validity of the regulation can not be questioned. It is clearly established however, that the regulation was not the basis for the refusal of the license. In his letter of June 27, 1949, referred to earlier in this opinion, the commissioner admits that he has licensed many 'outlets closer to schools and churches than the outlet in question', which he also states is 'approximately 200 feet' from the church and the school in the area. These statements of the commissioner plainly show that the location of the establishment of the applicant, which in fact is 150 feet from the nearest church and, by measurement from different points, 185 feet and 208 feet from the nearest school house, and is separated from them by wide public streets, was not within...