Northeast Liq. Inc. v. District of Col. al. Bev. Con. Bd., 6276.
| Decision Date | 29 March 1973 |
| Docket Number | No. 6276.,6276. |
| Citation | 302 A.2d 222 |
| Parties | NORTHEAST LIQUORS, INC., Petitioner, v. DISTRICT OF COLUMBIA ALCOHOLIC BEVERAGE CONTROL BOARD, Respondent, and McDonald's Liquors, Inc., Intervenor. |
| Court | D.C. Court of Appeals |
J. E. Bindeman, Washington, D. C., with whom Leonard W. Burka, Washington, D. C., was on the brief, for petitioner.
E. Calvin Golumbic, Asst. Corp. Counsel, with whom C. Francis Murphy, Corp. Counsel, and Richard W. Barton, Asst Corp. Counsel, were on the brief, for respondent.
Samuel B. Block and Theodore Kligman, Washington, D. C., for intervenor.
Before KELLY, FICKLING and KERN, Associate Judges.
In December of 1971, McDonald's Liquors, Inc. applied to the District of Columbia Alcoholic Beverage Control Board for a transfer of its Retail Class "A" liquor license from 300 New York Avenue, N.W. to a new location in the District of Columbia Farmers Market at 1309 Fifth Street, N.E. Northeast Liquors, Inc. opposed the application on the ground, inter alia, that since the main entrance of the Farmers Market was within 400 feet of the main entrance of the Hamilton Recreation Center, a District of Columbia facility across the street from the market, the Board was barred from granting the application by the pertinent provisions of 3 D.C. Rules and Regulations 2.2.1
At a hearing on January 12, 1972, it was adduced that there are two entrances to the recreation center. Arthur Kremelmeyer, at that time Administration Recreation Assistant for the District of Columbia Department of Recreation, testified that entrance A, the southern gate, is most heavily used because it "is nearest to the location where most of our patronage comes from, south of Florida Avenue", and that "most of the traffic does cross the ground for some reason or other."2 On cross-examination, however, he stated that the largest number of users of the center were students of Hamilton Junior High School, located directly north of the center, and during lunch hours, recess, or at the close of school, they would be most likely to use entrance B, located closer to the school building. He also felt that adults attending lectures, concerts and other recreational programs at night would ordinarily use entrance B because of its proximity to parking areas.
All parties conceded that entrance A was less than 400 feet from the main market entrance. As to entrance B, there was some dispute. One witness, testifying on behalf of Northeast, stated that according to his measurements entrance B was only 390 feet from the market, while an officer of McDonald's testified that his measurements showed the distance to be in excess of 400 feet.
Five days after the hearing, in the absence of the parties or their counsel, members of the Board made a personal inspection of the premises and had measurements taken. Subsequently, the Board, "[h]aving considered the testimony and inspected the premises personally",3 found that entrance B was the main street entrance to the recreation center and that it was 419 feet from the main street entrance to the Farmers Market. The application for transfer of the license was granted and Northeast appealed.
While the appeal was pending, the Board moved to remand since in granting McDonald's application it had relied on a personal inspection of the area and on measurements taken outside the presence of the parties, procedures similar to those since held irregular in Citizens Ass'n of Georgetown v. D. C. Alcoholic B. C. Bd., D.C.App., 288 A.2d 666 (1972). This court, retaining jurisdiction, ordered the record on review remanded to the Board with directions to complete the remand proceedings within forty-five days.
Pursuant to the remand the Board issued an order requesting the presence of all parties at a meeting on July 10, 1972, "for the purpose of remeasuring the distance", and convening a hearing on July 11, 1972, "for the purpose of hearing testimony and argument on the aforesaid measurements and for the hearing of other matters not inconsistent with the . . . [remand] order".4 As ordered, the parties met at the site and distances were remeasured. The two measurements obtained for the distance between the market and entrance B differed by 3 feet, but both exceeded 400 feet. The next day, at the hearing, Northeast first objected to the manner in which the measurements were made since the property lines were determined with reference to the edge of the public sidewalk rather than by official plats or surveyors' maps. It also offered to produce testimony concerning the main street entrance of the recreation area but the Board refused to accept it, stating that the remand was restricted to the question of measurement. Northeast then proffered that Walter Brooks, Jr., successor to Kremelmeyer in the Department of Recreation, was present and if called would testify that he is in charge of Hamilton Recreation Center, and that in his experience 80-90% of the users of the center use entrance A rather than B.
Counsel for McDonald's proffered information contained in the Board's confidential file as appropriate testimony concerning applicant's good moral character, but it is disputed by the parties whether such information was ever made available to Northeast.
Subsequently, on August 2, 1972, the Board issued a Summary of Further Proceedings which stated:
On a prior occasion two Members of the Board had viewed the general area with a view towards familiarizing themselves with the general geographic outlay of the neighborhood and not for any specific findings. Neither in its initial visit nor its subsequent visit to the premises, accompanied by counsel for the parties, did any of the Board Members rely on their own personal observations in making their findings of fact and conclusion of law which were based solely upon the evidence adduced by the witnesses.5
The Board concluded from the evidence that entrance B was the main street entrance to the recreation center and that it was over 400 feet from the main street entrance of the market, thus reaffirming its earlier findings. Northeast now argues that the Board erred in refusing to allow testimony on the question of the main entrance and in failing to make confidential information as to McDonald's moral fitness part of the...
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