Indiana Alcoholic Beverage Commission v. Baker
| Decision Date | 21 August 1972 |
| Docket Number | No. 172A48,172A48 |
| Parties | INDIANA ALCOHOLIC BEVERAGE COMMISSION, Appellant, v. James H. BAKER et al., Appellees. |
| Court | Indiana Appellate Court |
Theodore L. Sendak, Atty. Gen., Darrel K. Diamond, Deputy Atty. Gen., for appellant.
Stephen M. Coons, James W. Bradford, Bradford & Coons, Indianapolis, for appellees.
This action originated by way of hearing on application for liquor store permits to operate package liquor stores in Indianapolis by nineteen applicants, appellees herein, before the Alcoholic Beverage Commission of Indiana.
From an adverse ruling by the said Commission the applicants, appellees herein, timely filed a petition for review in the Marion Superior Court, Room No. 3. Appellant answered the petition, filed a transcript of the administrative proceedings, and was then granted a change of venue from the county on its motion. The review of the proceedings was had in the Johnson Circuit Court.
The findings of fact of the Alcoholic Beverage Commission, hereinafter referred to as ABC, were substantially as follows:
1. That the petitioners, appellees herein, filed applications for package liquor store dealers' permits for the respective premises of each of the parties, which premises are within the City of Indianapolis, Marion County, Indiana.
2. That the Commission has knowledge of the Acts of 1935, as amended, being Burns (1956 Repl.) § 12--518, IC 1971, 7--1--1--20, which authorizes the Commission to issue liquor dealer's permits.
3. That the Commission has knowledge of the Acts of 1951, as amended, being Burns (1970 Supp.) § 12--537, IC 1971, 7--1--4--6, which reads as follows:
'Only one (1) package liquor store dealer's permit shall be granted in each incorporated town or city for each five thousand (5,000) persons or fraction thereof as determined by the last decennial United States census.'
4. That the Commission has knowledge of the Acts of 1969, the same being Burns (1970 Supp.) § 48--9503, IC 1971, 18--4--14--1, which reads, in part, as follows:
5. That the Commission has knowledge of the Acts 1969, the same being Burns (1970 Supp.) § 48--9441, IC 1971, 18--4--12--34, which reads, in part, as follows:
6. That the population of the Consolidated City of Indianapolis as determined by the 1970 decennial census is 744,624.
7. That the population of the City of Indianapolis for the purpose of granting dealer's permits for package liquor stores is the population of the Fire Special District of the City of Indianapolis as determined by the 1970 decennial census.
8. That the population of the Fire Special Service District of the City of Indianapolis as determined by the 1970 decennial census is less than 500,000.
9. That the Commission had at that time issued 104 package liquor store dealer's permits in the City of Indianapolis, which number of permits supports a population of 520,000 using the ratio provided in the statute noted in Finding Number 3.
10. That the maximum number of package liquor store dealer's permits which may be issued in the City of Indianapolis already has been issued.
ABC then entered its order on the above findings denying applications of all named applicants, appellees herein, for permits for premises within the City of Indianapolis.
After trial by the Johnson Circuit Court, ABC filed its notice of intention to appeal and timely filed its motion to correct errors, after which the court entered modified findings of fact and conclusions of law and modified its judgment. On January 18, 1972, the motion to correct errors was overruled 'to the extent that the errors asserted were not cured by the modification of the Findings of Fact, Conclusions of Law and Judgment on January 6.'
The modified findings of fact and conclusions of law stated thereon by the trial court are as follows:
'FINDINGS OF FACT
'1. That the plaintiffs and each of them with the exception of the plaintiff R.R. and P. Associates, Inc. are individuals who reside in Marion County, Indiana, and that R.R. and P. Associates, Inc. is an Indiana Corporation with its principal place of business in Marion County, Indiana, and its stock issued and outstanding owned by residents of Marion County, State of Indiana.
'2. That on September 24, 1971, the plaintiffs filed their applications for permits to retail package liquor goods in the City of Indianapolis, Indiana, with the defendant Indiana Alcoholic Beverage Commission which accepted said applications for filing.
'3. That a hearing was held on September 24, 1971, notice having been waived by all parties thereto, before the Indiana Alcoholic Beverage Commission, said Commission being represented by all of its members and also the Attorney General of the State of Indiana by virtue of his deputy, David Kreider.
'4. That on September 24, 1971, the plaintiffs offered evidence in support of the applications filed with the defendant to retail package liquor in Indianapolis, Indiana.
'5. That on September 30, 1971, the defendant Indiana Alcoholic Beverage Commission entered its Order denying the applications of the plaintiffs for package liquor store dealer's permits in Indianapolis, Indiana.
'6. That on October 6, 1971, the plaintiffs filed their petitions for Review in the Marion Superior Court, Room No. 3, which Petition for Review was verified and filed within the time provided for review of the defendants decision in denying the plaintiffs applications for retail package liquor store dealer permits in Indianapolis, Indiana. Also, on said date the plaintiffs filed their cost bond in the amount of One Thousand Dollars ($1,000.00) and also served a copy of their Petition for Review upon the defendant and upon the Attorney General of the State of Indiana as provided by law and also requested a transcript of the proceedings before the Indiana Alcoholic Beverage Commission on September 24, 1971.
'7. That upon motion timely made by the defendant this cause was venued from the Marion Superior Court, Room No. 3 to this Court, and the notice of hearing was given in this cause on or about November 16, 1971, for a hearing on December 16, 1971.
'8. The plaintiff applications for package liquor store dealer's permits were filed upon the respective premises which were all within the City of Indianapolis, Indiana:
Riley Jay Bradford 5214 N. College
James H. Baker 2805 E. 55th Place
Charles H. Keever 2327 E. 52nd
Morris Meshulan 2913-15 E. Tenth
Evagene J. Bradford 1031 E. 54th
Carl S. Cowan 3721 Southeastern
Frank G. Marren 6010 Brookville Rd
Alma W. Buckner
Hattie S. Arnold 621 S. Illinois
David Neal Lasiter 230 E. Ohio
Richard L. Tetrick 225 E. Iowa
John H. Heeter 163 E. 25th St
Michael D. Cohen 3001 N. Keystone
Michael D. Cohen 2420 N. Meridian
Michael D. Cohen 343-5 Virginia Ave.
Charles E. Johnson 1546 N. Carrollton
R. R. and P. Associates, Inc. 4440 N. Keystone
Abe L. Klapper 3220 N sherman
Abe L. Klapper 2363 N. Meridian
William T. Sommer 3002 E. 56th St.
Ind.Ann.Stat. Sec. 12--537, which provides as follows:
"Only one (1) package liquore store dealer's permit shall be granted in each incorporated town or city for each five thousand (5,000) persons or fraction thereof as determined by the last decennial United States Census.'
'10. That the official United States government decennial census for the year 1970 showed the population of the city of Indianapolis to be 744,642 persons.
'11. That the time of the filing of the applications by the plaintiffs herein, there were outstanding 104 permits issued by the State of Indiana to permittees to retail package liquor in the City of Indianapolis, which permits are outstanding in the same number as of this date.
'12. That the defendant Indiana Alcoholic Beverage Commission is charged with the authority of regulating alcoholic beverages in the State of Indiana which in part exists of authorizing the issuance of alcoholic beverage permits as provided by Burns' Ind.Stat. Sec. 12--518.
'13. That at the time of the filing by the filing by the plaintiffs of their applications for package liquor dealer's permits in the City of Indianapolis, there were openings for package liquor permits in the City of Indianapolis in a number in excess of the total number of...
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