Mitchell v. Delaware Alcoholic Beverage Control Com'n

• Citation: 193 A.2d 294,56 Del. 260
• Parties: , 56 Del. 260 Littleton P. MITCHELL, Appellant, v. The DELAWARE ALCOHOLIC BEVERAGE CONTROL COMMISSION, Appellee.
• Decision Date: 31 May 1963
• Court: Superior Court of Delaware

Page 294

193 A.2d 294

6 Storey 260, 56 Del. 260

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

Superior Court of Delaware, New Castle County.

May 31, 1963.

Withdrawn, Corrected, Revised and Refiled June 21, 1963.

Louis L. Redding, Wilmington, for appellant.

George Gray Thouron, Wilmington, for Delaware Alcoholic Beverage Control Commission.

LYNCH, Judge.

This is an appeal from a decision of the Commission, refusing to grant applications made by Appellant, a Colored Person, for licenses for the sale of alcoholic liquors for consumption on and off Appellant's premises, located on the Delaware City-Port Penn Road, in Polktown, an area adjacent to the Town of Delaware City, Delaware. Appellant's premises are located about 75 yards south of the limits of said Town of Delaware City, on the principal north-south highway into and through that town.

No hearing was had by the Commission for the purpose of consideration of such application. Such hearings are not required by law, since 4 Del.C. § 541(a) requires only that:

'The Commission shall examine all applications for license as promptly as possible, and if it appears that any application should not be granted, the Commission shall so notify the applicant, stating the cause for refusal, and shall return the amount paid by the applicant.'

The Supreme Court of this state, DeMarie v. Commission, 1 Storey 206, 143 A.2d 119 (1958) said inter alia in this connection (1 Storey at 210, 143 A.2d at p. 121):

'* * * it becomes clear that only when the Commission has determined, except for the filing of a protest, to grant an application, is it provided that the Commission must give the persons making the protest an opportunity to present their objections. The statute does not provide for a hearing in any other eventuality and no implication to that effect may be read therein.' (Emphasis supplied.)

In considering Appellant's applications, the Commission considered information prepared by the Commission's employees listing the names, addresses and mileage from Appellant's premises of presently licensed outlets. This information as certified to the Court showed only that there are presently four licensed establishments within one mile of Applicant's proposed outlet. It also showed that Appellant's premises were located 'approximately 0.2 of a mile' from a church and a school ¹. Based upon its consideration of the record before it, the Commission denied the applications for licenses, giving the following reasons:

(1) There are already sufficient licensed premises in the locality to provide people who live in the community with a reasonably convenient opportunity to make a legal purchase of alcoholic liquor.

(2) There is insufficient unsupplied public demand in the locality for the sale of alcoholic liquor.

(3) No other objection was raised or noted as to the legal sufficiency of the application or the information appearing therein.

Appellant docketed his appeal from the Commission's ruling. In his appeal papers, Appellant stated his grounds of appeal:

1. The Commission 'abused its power to grant 'licenses' in refusing the applications * * * without a just cause'.

2. The Commission erred 'in finding as a fact that there are sufficient licensed premises in the locality for which the present licenses are sought', and in concluding 'that the granting of the licenses is not demanded by public convenience or necessity within the meaning of the statutes' of the State of Delaware.

3. The Commission erred 'in refusing to grant the licenses' because----

'(a) There are no licensed premises in the Town of Delaware City or its immediate environs which served colored persons * * * alcoholic liquor for consumption of the premises, and there are approximately 350 adult persons of such description in Delaware City and its immediate environs, the area which would be accomodated by such a licensed establishment.

'(b) There was formerly on the premises for which [Appellant] now seeks licenses, a taproom operating under the same kinds of licenses for which this application is made, and the circumstances with reference to the proximity of said licensed premises to church and school were the same at that time as now exist.'

4. The action of the Commission 'in refusing the application, under the circumstances, amounts to a denial of equal protection of the law.'

It must be stressed here that Appellant does not contend his applications were refused because he is a Negro; it nowhere appears in the appeal papers or in the record of the Commission's proceedings that this point was presented or considered, so the Court will accept the testimony of the Commission that this was not a factor in the Commission's rulings.

After briefs were filed by the attorneys for Appellant and the Commission, the Court considered them and initially took the position that under the statute, 4 Del.C. § 541(c), the record, as certified by the Commission, did not contain evidence on which Appellant could present his arguments based on the grounds of his appeal and that perhaps the Court should remand the record to the Commission for further testimony and decision.

The statute, 4 Del.C. § 541(c), of this State now provides:

'The Commission's decision shall be final and conclusive unless within 10 days after notice thereof a party to such hearing shall appeal to the Superior Court of the county in which the license would operate. In every appeal the cause shall be decided by the court from the record, without the aid of a jury; and the court may affirm, reverse or modify the Commission's decision. The Commission's findings of fact shall not be set aside unless the court determines that the record contains no substantial evidence that would reasonably support the findings. If the court finds that additional evidence should be taken, the court may take the additional evidence or remand the cause to the Commission for completion of the record. If the court finds that the Commission has made an error of law, the court shall reverse or modify the Commission's decision and render an appropriate judgment.' (Emphasis supplied.)

The question of whether the Court should 'take the evidence or remand the cause to the Commission for completion of the record' was fully considered at length by the parties with the Court, and ultimately it was agreed by the parties that the Court should 'take the evidence' rather than to 'remand the cause to the Commission for completion of the record' and then 'render' the 'appropriate judgment'.

Ultimately, the Court held two hearings; it also directed the Commission to analyze its records and prepare and submit reports showing certain information, not theretofore appearing in the record, which relates, at least indirectly, to the questions raised by Appellant in his grounds of appeal.

It was shown by evidence produced at the hearings held by the Court by personnel of the Commission (see particularly Commission's Ex. 1), and on it the Court finds:

1. The nearest establishment that is known to serve Negroes, living in the Town of Delaware City or in its environs, at a tap room, in the community and surrounding area of Delaware City, is Antonio's, located in New Castle, and it is almost ten (10) miles from Delaware City. The next closest place would be in Middletown, which is approximately fifteen (15) miles from Delaware City.

2. The proprietors of the various licensed establishments in Delaware City believe the grant of licenses to an establishment for Negroes would be proper and justifiable.

3. None of the licensed restaurants or tap rooms in the Town of Delaware City serve Negroes at bars or in dining rooms.

4. Negroes can make purchases of alcoholic liquors or beverages from licensed places in the Town of Delaware City, in a bottle or other container, for consumption 'off the premises'.

5. Delaware City has become a seaport town now and quite a few of the ships that berth there are manned by crewmen that are not white.

6. Check of licensed premises, located in the vicinity of the Town of Delaware City and in nearby areas, the mileage from Delaware City and what service could be had by Negroes reflects----

(a) Helen M. Keskemety, T/A Kelly's Tavern, located at Port Penn, Del. 4 miles from Delaware City--Service to Negroes refused other than for off-sales consumption.

(b) Augustine Beach Hotel, Inc., located 5 miles from Delaware City--Service to Negroes refused other than for off-sales consumption.

(c) William J. & Mary Ann Prouse, T/A Dragon Runn Inn, located at St. Georges, Delaware, 5 miles from Delaware City--Service to Negroes refused other than for off-sales consumption.

(d) Aaron T. Argo, T/A Red Lion Inn, located at Bear, Delaware, 12 miles from Delaware City--Service to Negroes refused other than for off-sales consumption.

7. Records of the Commission, compiled at the Court's request, in evidence as Commission Ex. 2-A, show that all three licensees for sales of alcoholic liquors for consumption off the premises show a very substantial excess of sales in comparison with sales of other licensees elsewhere, particularly for on premises consumption.

8. The Court further finds that the premises for which Appellant seeks licenses was a licensed establishment from March, 1948, until June 30, 1958; that the proprietor of the establishment did not apply for a renewal of license after the latter date.

9. That from April, 1954, until his licenses expired on June 30, 1958, for failure of renewal, such proprietor held licenses for sales for both on-premises and off-premises consumption.

10. The premises were at that time licensed as a restaurant.

11. Apparently the only difference between an establishment licensed by the Commission for alcoholic beverage sales as a restaurant and a licensed establishment as a tap room, is that the restaurant establishment may admit minors (for food service), while a tap room may not; but a tap room...