Delaware Alcoholic Beverage Control Com'n v. Mitchell

• Decision Date: 19 December 1963
• Citation: Delaware Alcoholic Beverage Control Com'n v. Mitchell, 196 A.2d 410, 57 Del. 103, 7 Storey 103 (Del. 1963)
• Parties: , 57 Del. 103 DELAWARE ALCOHOLIC BEVERAGE CONTROL COMMISSION, Appellant, v. Littleton P. MITCHELL, Appellee.
• Court: Supreme Court of Delaware

Page 410

196 A.2d 410

7 Storey 103, 57 Del. 103

DELAWARE ALCOHOLIC BEVERAGE CONTROL COMMISSION, Appellant, v. Littleton P. MITCHELL, Appellee.

Supreme Court of Delaware.

Dec. 19, 1963.

George Gray Thouron, Wilmington, for appellant.

Louis L. Redding, Wilmington, for appellee.

E. Norman Veasey, Chief Deputy Atty. Gen., Wilmington, for the State, amicus curiae.

WOLCOTT, Justice, SEITZ, Chancellor, and SHORT, Vice Chancellor, sitting.

WOLCOTT, Justice.

This is an appeal from a judgment of the Superior Court reversing an order of the Delaware Alcoholic Beverage Control Commission denying Littleton P. Mitchell's application for a license to sell alcoholic liquor for consumption both on and off premises in Delaware City.

Mitchell applied to the Commission for the license by filling out and submitting the required application form. In compliance with 4 Del.C. § 524, a notice of intention to apply for the license was published. As a result of the publication a protest against issuance of the license signed by 26 objectors was filed with the Commission. No hearing on the application was held by the Commission since 4 Del.C. § 541(b) only requires that a hearing be held if the Commission has determined to grant the application. No point of a lack of formal hearing before the Commission is made by the applicant.

The Commission caused an investigation of the application to be made by its staff. This investigation disclosed that there were then four licensed outlets for the sale of alcoholic liquors within one mile of the applicant's proposed premises, and that there were a church and school in close proximity to the applicant's proposed location.

Purportedly, upon the basis of the facts established by the staff investigation, the Commission denied the applicant a license for the reasons: (1) that there were sufficient licensed premises in the locality to supply the community with reasonably convenient opportunity to purchase alcoholic liquor legally, and (2) that there was insufficient unsupplied demand in the locality for the sale of alcoholic liquor.

The applicant appealed to the Superior Court. The asserted grounds of appeal were that (1) the Commission abused its discretion in denying the license without just cause, and (2) the Commission committed factual error in finding that there were sufficient licensed premises in the locality for the satisfaction of public convenience or necessity.

In the statement of reasons filed in support of his appeal, the applicant alleged that in the Town of Delaware City or its immediate environs there were no licensed premises which sold alcoholic liquor to Negroes for consumption on the premises, and that there are about 350 Negroes living in the community. Secondly, it was alleged that the premises in question on which the applicant proposed to exercise the applied-for license had for many years been licensed for sales of liquor for consumption on and off premises, and that a church and school existed at the same distances from the premises as at the time the current application was made. Accordingly, the applicant argued that the denial to him of a license by the Commission amounted to a denial of the equal protection of the law to Negro residents of the community.

The appeal came on before the Superior Court and after a certain amount of preliminary proceedings a hearing was held at which a substantial amount of evidence was received, presumably pursuant to the provisions of 4 Del.C. § 541(c), which authorizes in part the Superior Court, if it finds 'that additional evidence should be taken, * * * [to] take the additional evidence or remand the cause to the Commission for completion of the record.'

At the hearing thus held the Chairman of the Commission testified to the effect that the issuance of a license to the applicant was denied not for the reasons stated in the findings of the Commission from which the appeal was taken, but because of an objection telephoned to the Chairman by the then Superintendent of the Governor Bacon Health Center. The Superintendent objected to the issuance of the license by reason of the proximity of the premises to the Governor Bacon Health Center, an institution where, inter alia, alcoholics are under treatment. The fact of this objection does not appear in the record made before the Commission.

In substance, therefore, the Chairman of the Commission repudiated the assigned reasons for the denial to the applicant of a license. Furthermore, it does not appear that the telephoned objection by the then Superintendent of the Bacon Health Center was communicated to the other members of the Commission. But it is clear that the objection thus communicated was not made a part of the record before the Commission upon the basis of which the appeal was taken.

We are not clear as to the propriety of the Chairman of the Commission testifying at the hearing conducted before the Superior Court and apparently speaking for the Commission as a whole. We note that he was called as a witness for the Commission, but we pass over the question as to the propriety of this testimony, and of his right to speak for all the members of the Commission. The fact is, however, that his testimony impugned the record reasons given by the Commission for its decision. The result, therefore, is that the decision of the Commission cannot be permitted to stand on the record made before it. Lord v. Delaware Liquor Commission, 1 Terry 436, 13 A.2d 436; Lyons v. Delaware Liquor Commission, 5 Terry 304, 58 A.2d 889; Park Distributing Co. v. Delaware Liquor Commission, 5 Terry 6, 54 A.2d 551.

In the light of this development, therefore, the Superior Court would have been justified in reversing the decision of the Commission and remanding the case to it for a determination of the facts and the correction of the record to show the real cause for the denial of the license. Indeed, it might well be said that this was the proper course to take. This, however, the Superior Court did not do. It took extensive testimony--in fact, conducted a trial de novo--and ultimately made its own factual findings and directed the issuance of a license for reasons entirely dissimilar from those given by the Commission.

While 4 Del.C. § 541(c) authorizes the Superior Court on appeal to take additional evidence, we think it does not provide for appeal to the Superior Court by way of a trial de novo of the factual issues, and the making of new findings with respect thereto--particularly when none of the evidence thus taken has been presented to the Commission, and when it has never been called upon to exercise its judgment with respect thereto. We think it clear that § 541(c) does not authorize the Superior Court, in the guise of taking additional testimony, to hold a new trial and to make new and additional findings supplying a statutorily-recognized ground for denying an application, or demonstrating the nonexistence...