Nicholas M. Block, Ii, Plaintiff-appellant, v. Ronnie Thompson, Mayor of the City of Macon, Georgia, Etal., Defendants-appellees, 472 F.2d 587 (5th Cir. 1973)

This is an appeal from the refusal of the district court by declaratory and injunctive relief to order the City Council of Macon, Georgia to allow the appellant to transfer his licensed liquor store to another location within the city. We reverse and remand.

The Council first approved the transfer but acting pursuant to an unchallenged ordinance permitting reconsideration¹  and apparently after hearing the views of some citizens as Section 3-40 permits,²  the Council rescinded its former action and denied the transfer.

Pressing hard the now famous Hornsby v. Allen, 5 Cir., 1964, 326 F.2d 605³  which moved the now versatile United States District Judge from the firing line or position of the engineer in the locomotive cab, Florida E. C. Ry. Co. v. Brotherhood of R. Trainmen, 5 Cir., 1964, 336 F.2d 172, to that of a dispenser of Georgia municipal liquor licenses, appellant makes a number of constitutional claims. We need discuss only one.

On a record which is pitifully thin, without even so much as a copy of the entire liquor licensing ordinance, we agree that the provision for a public hearing at which time views of citizens will be heard (see note 2, supra) fails to set forth sufficiently specific objective criteria as to the basis for allowing or disallowing a transfer. The idea of a hearing is fine. But what is to be heard? For all that appears, the Council after hearing views pro and con could take a show of hands and then adapt its decision to this momentary plebiscite.

But although we hold this invalid on this record, this is a long way from reversing with directions to enter a mandatory order. For the right of the state to regulate liquor is broad, Mayhue's Super Liquor Store, Inc. v. Meiklejohn, 5 Cir., 1970, 426 F.2d 142; California v. LaRue, 1972, 409 U.S. 109, 93 S. Ct. 390, 34 L. Ed. 2d 342, and the city of Macon should have an opportunity of enacting within a reasonable time⁴  to be fixed by the Judge, an ordinance which will pass the Hornsby muster as to criteria and suitable hearing. We cannot forecast either the outcome under the new ordinance or its adequacy in a constitutional sense. That must be for another day-and if Macon does the job right, hopefully that day will never come.

Reversed and remanded.