Minkoff v. Payne

• Court: U.S. Court of Appeals — District of Columbia Circuit
• Writing for the Court: WILBUR K. MILLER, FAHY and WASHINGTON, Circuit
• Citation: Minkoff v. Payne, 210 F.2d 689, 93 U.S.App.D.C. 123 (D.C. Cir. 1953)
• Decision Date: 05 November 1953
• Docket Number: No. 11444.,11444.
• Parties: MINKOFF v. PAYNE et al.

93 US App. DC 123, 210 F.2d 689 (1953)

MINKOFF v. PAYNE et al.

No. 11444.

United States Court of Appeals, District of Columbia Circuit.

Argued June 9, 1953.

Decided November 5, 1953.

Mr. Harry I. Rand, with whom Mr. Joseph A. Kaufmann, Washington, D. C., was on the brief, for appellant.

Mr. Chester H. Gray, Principal Asst. Corp. Counsel for the District of Columbia, with whom Messrs. Vernon E. West, Corp. Counsel, and Robert D. Wise, Asst. Corp. Counsel, and Edward A. Beard, Asst. Corp. Counsel at the time the brief was filed, were on the brief, for appellees.

Before WILBUR K. MILLER, FAHY and WASHINGTON, Circuit Judges.

FAHY, Circuit Judge.

The appellant, Hyman Minkoff, sued in the District Court to enjoin the members of the Alcoholic Beverage Control Board¹ from putting into effect a decision to deny renewal of his Retailer's Class "A" license for the year beginning February 1, 1951.² The complaint alleged that since 1937 appellant had conducted an alcoholic beverage business under yearly licenses expiring on the 31st of January each year. Further allegations made a case of very substantial injury to appellant if his established business were terminated by failure to obtain the renewal. A temporary restraining order of the District Court prohibited interference with appellant's business pendente lite.³ Defendants filed a motion to dismiss or, in the alternative, for summary judgment, accompanied with a copy of the transcript of the proceedings before the Board. These show that the Board's denial of the license rests upon its conclusion that it "is unable to satisfy itself that the applicant is of good moral character and generally fit for the trust to be in him reposed", a statutory prerequisite to the granting of a license, § 25-115(a) (1), D.C.Code (1951).

The Board proceedings show also that the bases for its adverse conclusion are its findings that several years previously appellant, in violation of Title 26, § 2857(a) of the Internal Revenue Code, 26 U.S.C.A. § 2857(a), had made false and fraudulent entries in his business books and records, had conspired with bootleggers operating out of North Carolina not to make required entries in certain circumstances, and, pursuant to said conspiracy had failed to make entries required by § 2857(a).

The complaint alleged discrimination, and appellant filed with the District Court an affidavit to the effect that in no other instance had the Board revoked, suspended for over 30 days, or failed to renew, a license for violation of those provisions of local statute and regulations which most nearly resemble the cited provisions of the Internal Revenue Code.

On consideration of the record made before the Board, the pleadings filed in court,⁴ and plaintiff's said affidavit, the District Court granted defendants' motion for summary judgment.

The use of the summary judgment procedure was appropriate. In placing the issuance of licenses in the hands of the Board the statute, § 25-106, D.C.Code (1951), provides that its "action * * * on any question of fact shall be final and conclusive * * *", subject, in certain instances not here applicable, to review by the Commissioners of the District of Columbia.⁵ Accordingly, the question before the court was whether the findings of the Board were so arbitrary or capricious, or so unsupported by evidence, as to be unwarranted as matter of law. If the court was correct in not overturning the findings, and if there was no genuine issue of material fact as to discrimination, the case was properly resolved by summary judgment procedure. National Broadcasting Co. v. United States, 319 U.S. 190, 227, 63 S.Ct. 997, 87 L.Ed. 1344; Fields v. Hannegan, 82 U.S.App.D.C. 234, 162 F.2d 17, certiorari denied, 332 U.S. 773, 68 S.Ct. 88, 92 L.Ed. 358; Wawa Dairy Farms v. Wickard, 3 Cir., 149 F.2d 860, 864; Rule 56(c), Fed.R.Civ.P., 28 U.S.C.A.

Neither the complaint nor the affidavit required a different procedure due to their allegations of discrimination. Each failed to raise an issue of fact in that regard. It does not appear from the complaint or, as the District Court pointed out, from the evidence before the Board, that in any instance relied upon to show discrimination there was a conspiracy such as the Board found in this case. This is as true of the affidavit as of the evidence.

We turn, then, to consideration of the evidence before the Board to determine whether, in the light of the statutory criteria for issuance of a license, the findings of the Board were properly upheld by the District Court. We have pointed out that under the statute the Board must satisfy itself that the applicant is of good moral character and generally fit for the trust to be in him reposed, § 25-115(a) (1). A decision of the Board on this question may not be arbitrary or capricious. It must be based upon substantial evidence. Moreover, when, as in this case, the Board action amounts to a refusal to renew a license previously issued it must be based upon evidence which the applicant had full opportunity to refute.⁶

At the hearing before the Board⁷ a number of witnesses of unquestioned credibility testified to the good moral character and general fitness of appellant. But there was evidence that he had engaged in specific instances of conduct, the violations of law mentioned above, inconsistent with the good moral character and fitness required of one who assumes the very real public responsibility incident to the business of selling alcoholic beverages. It is true there was conflicting testimony by appellant and the bootleggers as to the alleged conspiratorial plans, and it is true also that the bootleggers were to be deemed accomplices and co-conspirators for the purpose of viewing their testimony with caution. Nevertheless the Board could honestly and reasonably have believed the evidence of alleged conspiracy, and failure to keep records pursuant to it. It was therefore within the province of the District Court to refuse to set aside the action of the Board. As the court said of the circumstances presented, "it is not for this Court to weigh the evidence and determine what its conclusion would have been." The resolution of the facts by the fact-finding Board was not arbitrary, capricious, discriminatory or so lacking in evidentiary support as to be erroneous in law. Furthermore, we have no reason to suppose the court departed from the standards for review set forth in Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456, relied upon by appellant. While the question of moral character and fitness is indeed not an ordinary factual one and definitely involves the exercise of judgment, it is within the factual rather than the legal realm. See Standard Oil Development Co. v. Marzall, 86 U.S.App.D.C. 210, 181 F.2d 280. The record does not afford a solid basis for court disagreement with the findings and conclusions reached by the public agency charged with primary responsibility for the relevant determinations, though a different result might reasonably have been reached, as shown by the dissent of one member of the Board.

Appellant urges that it was erroneous for the Board to rest its decision in part upon the compromise of the criminal charges,...