dissenting opinion by Judge D. C. Riley
How later courts described this case
- dissenting opinion by Judge D. C. Riley
Written by the judges who cited it.
The opinion
D. C. Riley, J.
(dissenting). I am in accord with the majority in their determination that the City of Birmingham may limit the number of liquor licenses to be issued, and that in so doing their resolution is not in conflict with the Michigan Liquor Control Act, nor preempted by the Legislature.
The right to ration such licenses carries with it the obligation, however, to do so in a manner that is neither arbitrary nor capricious. The rationing procedure should be fair and equitable, capable of explanation and understanding, and most of all, determined and announced in advance of its being instituted.
The city’s denial of the two applications before us was arbitrary and capricious, for the reason that these applications were pending prior to the city’s adoption of their limit. Again, basic fairness requires that notice be given of any limitation established. This was not done here. Therefore, the city cannot reject these applicants at the same hearing at which it announces the limitation on the basis of the limit set. Rather, they must treat *531 these applicants as they had all others who preceded their limitation and give valid reasons for disqualification. 1
Inasmuch as it is stipulated that the two applicants herein involved were otherwise qualified and would have been issued licenses but for the disqualifying limitation which I find to have been arbitrarily imposed, I would reverse and remand to the trial court for an order compelling approval of the issuance of the disputed licenses.
It is worthy to note that one of the applicants before us was rejected in April, 1978, because they did not have a full-service restaurant. They reapplied as such a restaurant in September, 1978, only to be rejected on October 30, 1978, because of the limit set coincident with the hearing.