Conrad v. D.C. Alcoholic Beverage Control Bd.
| Decision Date | 12 January 2023 |
| Docket Number | 21-AA-748 |
| Citation | 287 A.3d 635 |
| Parties | Christopher CONRAD, Petitioner, v. DISTRICT OF COLUMBIA ALCOHOLIC BEVERAGE CONTROL BOARD, Respondent. |
| Court | D.C. Court of Appeals |
Brandi G. Howard, Abram J. Pafford, Washington, and Alicia M. Penn were on the brief for petitioner.
Karl A. Racine, Attorney General for the District of Columbia at the time of submission, Caroline S. Van Zile, Solicitor General, Ashwin P. Phatak, Principal Deputy Solicitor General, Graham E. Phillips, Assistant Attorney General, and Richard S. Love, Senior Assistant Attorney General, were on the brief for respondent.
Before Easterly and McLeese, Associate Judges, and Fisher, Senior Judge.
Petitioner Christopher Conrad challenges an order of the District of Columbia Alcoholic Beverage Control Board renewing Holiday Family Liquor, Inc.’s license to sell alcoholic beverages. We vacate the Board's order and remand the case for further proceedings.
Holiday applied for renewal of its license to sell alcoholic beverages. A group including Mr. Conrad opposed the application. Mr. Conrad lives near the store at issue. The local Advisory Neighborhood Commission (ANC) also opposed the application. To obtain renewal, Holiday was required to demonstrate that its liquor store "is appropriate for the locality, section, or portion of the District where [the establishment] is to be located." D.C. Code § 25-313(a). In making that determination, the Board must consider all relevant evidence, including the effect of the establishment on real-property values; the effect of the establishment on peace, order, and quiet, including the noise and litter provisions set forth in D.C. Code §§ 25-725 and - 726 ; and the licensee's record of compliance with alcoholic-beverage statutes and regulations and any conditions imposed on the license, including the terms of any settlement agreement. D.C. Code §§ 25-313(b)(4) and - 315(b)(1). Section 25-726 requires licensees to "take reasonable measures to ensure that the immediate environs of the establishment, including adjacent alleys, sidewalks, or other public property immediately adjacent to the establishment, or other property used by the licensee to conduct its business, are kept free of litter." D.C. Code § 25-726.
The Alcoholic Beverage Regulation Administration (ABRA) conducted an investigation into Holiday's renewal application. The report of that investigation was admitted into evidence by the Board, and the Board also held an evidentiary hearing. The evidence before the Board included the following.
An ABRA investigator visited Holiday on ten occasions over a period of approximately one month. The investigator found no statutory or regulatory violations and no peace, order, or quiet issues. The investigator did see some individuals congregating in the parking lot on one occasion. On most occasions, some individuals were sitting in lawn chairs at the end of the small strip mall of which Holiday is a part.
The ABRA investigator spoke to an ANC Commissioner about the ANC's opposition to renewal. The ANC Commissioner reported that (1) Holiday was near to schools; (2) minors patronize Holiday and have bought alcohol there; (3) Holiday had been caught selling alcohol to minors three times in the last five years; and (4) a minor had been shot and killed right in front of Holiday.
The ABRA investigator searched police records and determined that there had been 163 calls for service to Holiday's address in the preceding year, for reasons including illegal drug activity, disorderly persons, shots fired, and persons with weapons. According to the ABRA investigator, none of those incidents was determined to be an ABRA violation. The ABRA report also noted two ABRA violations in the preceding three years: one for failure to follow a settlement agreement and one for sale to a minor.
A settlement agreement had been reached between a prior owner of the store and a community group. Among other things, the agreement required the store to refrain from selling alcohol or cigarettes to minors and to take reasonable steps to prevent loitering in front of the store. The agreement provided that complaints concerning the store would be forwarded to a business association, with written notice to the store.
At the evidentiary hearing, the ABRA investigator explained that the people sitting in lawn chairs did not appear to be on Holiday's property but instead seemed to be next to the property. The ABRA investigator acknowledged having seen litter near that group and on the adjacent road. The ABRA investigator explained that a school entrance was directly across the street from Holiday. The ABRA investigator acknowledged that there also had been two additional sales to minors at Holiday, one in 2015 and one in 2016.
Holiday's owner testified about the store's use of security cameras and lighting, its efforts to prevent sales to minors, and its efforts to maintain the cleanliness of the store, the parking lot, and the areas surrounding the store. The owner testified that children were not permitted in the store without a parent. The owner also testified that litter in the area was from the nearby market, not the liquor store.
A community supporter of Holiday testified that the store was pretty clean for the area and that she had never seen a child in the store or crime inside the store. In her view, the store was not related to the criminal activity in the area. Rather, the problems in the area related to a market in the mall. Moreover, that witness testified that the entire ward in which the store is located is not safe.
Another community supporter acknowledged having seen some littering in and around the store "a while ago," but she testified that she no longer saw litter. She did not see people loitering in the parking lot, although she did see people in lawn chairs on public property. In her view, the crime in the area related more to illegal drug use than to alcohol use.
The principal of a school located about a block away from Holiday testified that the school had had several instances of students purchasing alcohol or cigarettes at the store. The principal personally saw children in the store "purchasing items they should not have been purchasing." She also testified that families had complained about safety concerns because people loitered in front of the store and solicited children to participate in inappropriate activities. According to the witness, children were "curtailed from ... passing" by the store because of the severe violence and trafficking at that location. In the incident in which the child was killed near the store, the intended targets frequented the store and were standing on the property of the store and the nearby market at the time of the shooting. (Although this issue is disputed, the Board found that the store was closed at the time of the shooting.)
The ANC Commissioner for the area including Holiday testified that it was common knowledge that the store sells alcohol to minors and had done so many times without being caught. The Commissioner described a complaint to the Department of Consumer and Regulatory Affairs ("DCRA") brought against Holiday by a neighboring property owner about trash on her property that came from Holiday. That complaint, which was introduced into evidence, alleged that the store did not attend properly to trash, which blew onto the neighbor's property and attracted rodents and pests.
The ANC Commissioner also testified that alcohol and cigarettes had been found in the lockers of students at a nearby school. In the Commissioner's view, there was a nexus between the violence in the area and Holiday, and the store was disrupting the peace, order, and quiet of the community. The Commissioner also believed that the store was having a negative impact on property values in the area and that the store had not adopted reasonable measures to deal with litter. The ANC recommended that the Board deny the renewal application.
A former employee of the store admitted to having once sold alcohol to a minor by mistake.
Mr. Conrad presented police records indicating that there had been nine liquor-law violations at the address of Holiday during the preceding three years. Police records and reports also reflected numerous other assaultive and drug crimes in the vicinity of the store, including nine violent crimes involving a gun in the same block in the preceding period of approximately two years. Mr. Conrad also presented numerous survey responses from individuals, stating among other things that the store did not properly deal with trash, that the store sold liquor to minors, and that violence and illegal activity near the store presented a danger to the community.
Finally, Mr. Conrad introduced photographs of the area behind the store depicting trash.
We will uphold a decision by the Board if the decision is in accordance with the law and supported by substantial record evidence. D.C. Code § 2-510(a)(3)(A), (E). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, a standard satisfied with a minimal amount of evidence, given [the court's] deference to [an] agency's informed judgment and special competence in the matters before it." Acott Ventures, LLC v. D.C. Alcoholic Beverage Control Bd. , 135 A.3d 80, 88 (D.C. 2016) (citations, brackets, and internal quotation marks omitted). If substantial evidence supports the Board's findings, the court "will not substitute [its] own judgment for that of the [Board,] even though there may also be substantial evidence to support a contrary decision." Id. We give considerable deference to the Board's interpretation of ambiguous statutory requirements that the Board administers. Levelle, Inc. v. D.C. Alcoholic Beverage Control Bd. , 924 A.2d 1030, 1035-36 (D.C. 2007). We review the Board's evidentiary...
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