Haight v. D.C. Alcoholic Beverage Control Bd.

• Decision Date: 21 December 1981
• Docket Number: No. 80-271.,80-271.
• Citation: 439 A.2d 487
• Parties: James F. HAIGHT, et al., Petitioners, v. DISTRICT OF COLUMBIA ALCOHOLIC BEVERAGE CONTROL BOARD, Respondent.
• Court: D.C. Court of Appeals

439 A.2d 487

James F. HAIGHT, et al., Petitioners, v. DISTRICT OF COLUMBIA ALCOHOLIC BEVERAGE CONTROL BOARD, Respondent.

No. 80-271.

District of Columbia Court of Appeals.

Argued January 6, 1981.

Decided December 21, 1981.

Courts Oulahan, Washington, D.C., for petitioners.

Philip T. Van Zile, III, Asst. Corp. Counsel, Washington, D.C., with whom Judith W. Rogers, Corp. Counsel, and David P. Sutton, Acting Deputy Corp. Counsel, Washington, D.C., were on the brief, for respondent.

Before NEWMAN, Chief Judge, and HARRIS and FERREN, Associate Judges.

NEWMAN, Chief Judge:

Petitioners, James Haight, Sam Kramm, and Earl Meyerson, all Georgetown business owners, seek review of a decision of the District of Columbia Alcoholic Beverage Control Board granting the application of Matilda, Inc., t/a Cafe Matilda (Matilda's) for a Class "D" liquor license to serve beer and wine. See D.C.Code 1973, § 25-111(h). Petitioners contend that the Board erred in excluding certain evidence from the hearing, improperly shifted the burden of proof to the petitioners, and unlawfully issued Class "F" licenses to Matilda's, see id. § 25-111(j), thereby prejudging the Class "D" proceedings.¹ We affirm the Board's order.

I. Facts and Proceedings

In early August 1979, Matilda's filed an application for a class "D" liquor license for the premises at 3263 M Street, N.W. The Board conducted a hearing on September 12, 1979.

In support of the application, Mohammed Ben Aniba, secretary-treasurer and a director of Matilda's, testified that neither he nor any other officer had been convicted of any felony or of a misdemeanor under the National Prohibition Act. He further testified that he was a bona fide resident of the United States, that he had had a stable business career, and that Matilda's two other officers (Ben Aniba's wife and sister-in-law) were legal residents of the United States. Ben Aniba also testified that he had been associated with the premises for approximately twenty years, although Cafe Matilda itself had opened on or about June 14, 1979. He added that there had been no trouble with the police, that trash was collected regularly, and that parking was available on the street and in nearby lots. Irving Hall, an employee at a nearby parking lot and a patron of Matilda's, confirmed the cleanliness of the establishment and the availability of parking. Finally, Matilda's introduced a petition containing 190 signatures in support of the application.

Petitioners attempted to cross-examine Ben Aniba about his ownership of a duly licensed retail shop, the Birdcage,² located upstairs from Matilda's, which had sold a variety of items, including imported clothing and jewelry, and "drug paraphernalia."³ Apparently, Ben Aniba had owned and operated this shop on the first floor of the premises for approximately five years, but had moved it upstairs when Matilda's opened. He testified, however, that one week prior to the liquor license hearing, he had sold that business. As of the date of the hearing, the inventory had been removed from the premises.

Petitioners sought to argue to the Board that Ben Aniba's previous ownership of the Birdcage was relevant both to the appropriateness of the premises for a liquor license, see id. § 25-115(a)(6), and to the moral character or general fitness of Ben Aniba himself, see id. § 25-115(a)(1). The Board ruled, however, that any evidence or testimony relating to the upstairs shop was irrelevant, for two reasons: first, the upstairs shop was not part of the premises to be licensed, and second, the upstairs shop was no longer in existence, and therefore not relevant to the appropriateness of the applicant's premises. Only if the protestants could show illegal activity, the Board ruled, would the evidence be admitted. The Board accordingly prevented petitioners from pursuing this line of questioning and ruled that any testimony already given on this subject would be stricken from the record.

Petitioners were permitted to proffer the testimony of two opposition witnesses on this issue. The first witness was Carl Jenkins, employed by petitioner James Haight at "Mr. Smith's" restaurant, a licensed establishment located approximately two blocks from Matilda's, who would have testified as to the items that he had seen for sale in the upstairs shop. The Board rejected this proffer, however, as petitioners' counsel conceded that the witness had neither observed nor purchased anything illegal. Petitioners' second witness, Jonathan Edges, was proffered as an expert in the field of drug abuse. Petitioners' counsel stated that he would testify, first, that items such as water pipes are used primarily in connection with illegal drugs, and second, "that the sale of drug paraphernalia, even though in itself it is not per se illegal, it contributes to drug abuse and crime and is a detriment to the community." Again, the Board rejected the proffered testimony in light of its earlier ruling.

The Board did hear testimony from two other witnesses in opposition to the application. The first was petitioner James Haight, president and general manager of "Mr. Smith's" restaurant. The second witness was Caren Pauley, an Advisory Neighborhood Commissioner who lived one or two blocks from Matilda's, and who was appearing in an unofficial capacity.⁴ Both witnesses testified that the Georgetown area (where Matilda's is located) is saturated with liquor establishments and that the proliferation of liquor licenses was ruining the community. Specifically, Pauley testified that the area was plagued by traffic, crime, litter, and noise attracted by liquor establishments. Other than Matilda's affiliation with the Birdcage shop, however, neither witness said there was anything particularly wrong with the applicant. They emphasized, rather, that this would be one more liquor establishment in an area where there were already too many. Pauley added that she and others had attempted, so far without success, to have the District Council declare a moratorium on liquor licenses in the area.

After the hearing, the Board granted Matilda's applications for two consecutive Class "F" (temporary) licenses running through October 15, 1979. On October 9, petitioners moved to suspend or revoke the temporary license then in effect. In response, Matilda's requested permission of the Board to withdraw its pending application for another Class "F" license. On November 26, 1979, the Board granted Matilda's request to withdraw the application and — because the previous licenses had expired — denied petitioners' motion for suspension as moot.⁵ Matilda's sought no further Class "F" licenses.⁶

On March 3, 1980, the Board issued its Findings of Fact and Conclusions of Law. It found that the officers of Matilda's were legally resident aliens, but see id. § 25-115(a)(3),⁷ and had never been convicted of a felony or of a misdemeanor under the National Prohibition Act. Id. § 25-115(a)(2). The Board further found "there is no evidence of record indicating" that any of Matilda's officers and directors are "other than of good moral character." Id. § 25-115(a)(1). In addition, the Board found that Matilda's met various legal requirements as to ownership, id. §§ 25-115(a)(4) & (5), and as to distance from objecting neighbors (600 feet), id. § 25-115(c), and from schools and churches (400 feet). 3 DCRR § 2.2. Finally, the Board made findings with respect to the character of the premises, its surroundings, and the wishes of others in the neighborhood, see D.C.Code 1973, § 25-115(a)(6), including findings that trash was removed five days a week, that there was public parking in the immediate area, that petitions had been filed with 190 signatures in support of the application, and that a total of four persons had written and/or appeared in opposition. The Board summarized its findings as to appropriateness of the premises:

30. Protestants' contention that no further licenses be issued in this area is more appropriately addressed to the District of Columbia City Council. (See Section 25-107, D.C.Code, 1973 Edition of the Act.)

31. With respect to Protestants' contention that the premises [are] inappropriate because of the operation of a gift shop on the second floor, the Board notes that applicant's occupancy of the premises is restricted to the first floor and basement (for storage). (See Certificate of Occupancy No. B116223).

* * * * * *

The place for which the license is sought is appropriate considering the character of the premises, its surroundings and, the wishes of the persons residing or owning property in the neighborhood.

The Board accordingly concluded that Matilda's met all statutory requirements and granted its application for a Class "D" liquor license through June, 1980.

II. Exclusion of Evidence Regarding the Upstairs Shop

Petitioners attempted to introduce testimony about the Birdcage Shop with respect to two issues: appropriateness of the premises for a license, see D.C.Code 1973, § 25 -115(a)(6), and fitness and good character of the applicant, see id. § 25-115(a)(1). The Board excluded this evidence as irrelevant to both issues. We hold that the Board did not abuse its discretion in so ruling.

We emphasize at the outset that, while administrative proceedings are governed by more liberal and flexible evidentiary standards than judicial proceedings, the agencies are invested with a correspondingly greater discretion than trial judges in determining the admissibility of evidence. See Kopff v. District of Columbia Alcoholic Beverage Control Board, D.C.App., 381 A.2d 1372, 1385 (1977). Because there is no jury to shield, agencies may tend to resolve any doubts in favor of admitting the evidence. Nevertheless, the DCAPA mandates the exclusion of "irrelevant, immaterial, and unduly repetitious evidence." D.C.Code 1978 Supp., § 1-1509(b). The Alcoholic Beverage Control Board itself has incorporated more specific evidentiary guidelines into its...