Park v. Alcoholic Beverage Control Bd., 86-682.
| Decision Date | 24 March 1989 |
| Docket Number | No. 86-682.,86-682. |
| Citation | 555 A.2d 1029 |
| Parties | Joon II PARK, et al., Petitioners, v. DISTRICT OF COLUMBIA ALCOHOL-IC BEVERAGE CONTROL BOARD, Respondent. |
| Court | D.C. Court of Appeals |
Bernard C. Dietz, Washington, D.C., was on the brief for petitioners.
Frederick D. Cooke, Jr., Corp. Counsel, Charles L. Reischel, Deputy Corp. Counsel, Lutz Alexander Prager, Asst. Deputy Corp. Counsel, and Charlotte M. Brookins, Asst. Corp. Counsel, Washington, D.C., were on the brief for respondent.
Before NEWMAN and TERRY, Associate Judges, and KERN, Senior Judge.
After a hearing at which petitioners were present, the Alcoholic Beverage Control Board denied their application for a Class B retailer's license.1 Petitioners contend that the Board's action was not supported by substantial evidence, that the Board erred in denying their request to reopen the record, and that the hearing was incurably tainted when a Board member mentioned an ex parte conversation with the principal of a school located near petitioners' store. We affirm.
Petitioners, Mr. and Mrs. Park, are the owners of the Corner Market, a "mom and pop" convenience store on 20th Street, N.E., just south of Benning Road. The store carries fresh fish, chicken, and other grocery items for its regular customers, the residents of the neighborhood, as well as various snack foods and chips for purchase by school children and people who work nearby. Mr. Park told the Board that he and his wife applied for a Class B license mainly to accommodate the regular customers who buy chicken and fish.
Petitioners' application was opposed in writing by the District of Columbia Board of Education and by Advisory Neighborhood Commission (ANC) 6A.2 In addition, Robert Boyd, the elected Board of Education member from Ward 6, where the market is located, and Frances Queen, a member of ANC 6A, both testified at the hearing. Their opposition was based on the market's proximity to the Blow Elementary School, the number of Class A and Class B licensees already operating in the neighborhood, and the serious litter problem in the vicinity of the market, particularly around the schoolyard.
The evidence showed that the rear of the market and the schoolyard were separated by an alley only ten feet wide. The distance from the front entrance of the market (where customers enter and exit) to the nearest opening in the chain-link fence surrounding the schoolyard3 was about fortyfive feet. The opponents of the application asserted not only that the market was too close to the school to be selling alcoholic beverages, but that the alley, through which children walked on the way to and from school, was populated by loiterers, vagrants, and drunkards who would be further encouraged to hang around if a ready supply of beer and wine became available at the Corner Market.4 Moreover, the area around the school already contained four Class A licensees, two Class B licensees, and one Class C licensee.5 Finally, the large amount of litter in and around the school playground was described by Mr. Boyd, Mrs. Queen, and Garland Cheek, an investigator for the Board who visited the school seven times. On his first visit Cheek noted that the playground was strewn with litter, including broken glass, milk cartons, bags, and "just about anything you can imagine." On subsequent visits he repeatedly saw the playground strewn with broken glass, beer cans, and beer bottles, all of which made the play area unusable and dangerous. Mr. Boyd said that the litter was so voluminous and accumulated so rapidly that the school's maintenance crew could not keep up with it. Mrs. Queen supplemented her testimony with several photographs of the area, some of which showed the trash in the schoolyard, the cars in the alley, and the derelicts in and around the vacant lot.
We must uphold the Board's decision if it is in accordance with law and supported by substantial evidence on the record as a whole. D.C.Code § 1-1510(a)(3)(E) (1981). Substantial evidence has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938) (citations omitted). We readily conclude that the Board's decision here was supported by substantial evidence, namely, the testimony of three witnesses and the photographs supplied by Mrs. Queen.
In its order denying petitioners' application, the Board found that the Blow Elementary School was less than forty-six feet from petitioners' store; that the school playground was "littered with broken glass, beer bottles, beer cans, and soda bottles"; and that in the immediate area seven businesses already held Class A, Class B, or Class C retailer's licenses. These findings were supported by testimony from the Board's own investigator, who visited the area on several occasions over a period of seven months, as well as from Mrs. Queen and Mr. Boyd. Mrs. Queen gave a vivid description of the "loiterers" and "winos" who hang out in the alley between the Corner Market and the Blow Elementary School—an alley that is often traversed by young children. Furthermore, the unanimous recommendation of ANC 6A was made part of the record and considered by the Board. The ANC opposed petitioners' application because the market was "too close to a public school." The Board is obliged to give the ANC's recommendation "great weight." D.C. Code § 1-261(d) (1981); see Kopff v. District of Columbia Alcoholic Beverage Control Board, 381 A.2d 1372, 1383-1385 (D.C. 1977). That was an easy task in this case, for the ANC's recommendation was supplemented by the testimony of one of its members, Mrs. Queen, who graphically described the alley and its environs on the basis of her own personal observations.
Petitioners assert that the beer bottles and cans obviously could not have come from their store because they were not licensed to sell beer, and that a petition in support of the application was signed by 130 people while no written objections were filed by nearby property owners. These assertions may be true, but they have no effect on our decision. Even assuming that there was substantial evidence on petitioners' side which would support approval of their application, we must nevertheless accept the Board's findings and affirm its denial of petitioners' application because they too are supported by substantial evidence. Upper Georgia Avenue Planning Committee v. Alcoholic Beverage Control Board, 500 A.2d 987, 992 (D.C. 1985) (citing cases); see Consolo v. Federal Maritime Commission, 383 U.S. 607, 620, 86 S.Ct. 1018, 1026-27, 16 L.Ed.2d 131 (1966); NLRB v. Nevada Consolidated Copper Corp., 316 U.S. 105, 62 S.Ct. 960, 86 L.Ed. 1305 (1942).6
Petitioners next argue that they were denied a fair hearing because Harry Thomas, a Board member, made an allegedly prejudicial comment during the proceedings. At the end of Mr. Cheek's testimony, shortly after petitioners had introduced some photographs into the record, Mr. Thomas asked:
I have a question. I wonder why you would pick 6:00 o'clock in the morning to do an investigation before school was open. I think Mr. [Lawrence] Hill is the acting principal at Blow Elementary School now, and I talked to Mr. Hill about the problems of loitering in that neighborhood, and I don't think the pictures give us a true picture of the situation in that block of Benning Road or my observation as a citizen who lives in the neighborhood, that the pictures are not a true picture of what really are the activities.
. . . And I know there are problems in that neighborhood with drugs and prostitution and all kinds of things.
Petitioner contends that in making this statement Thomas improperly related the results of his personal investigation to the other Board members, and that the other members in turn improperly relied upon Thomas' statement in reaching their decision.
After petitioners' brief was filed, the Board moved to remand the record in this case so that the circumstances of Mr. Thomas' conversation with Mr. Hill might be more fully developed. We granted the motion and remanded the record with a request to clarify when and how the conversation with Mr. Hill took place and what was discussed. In response to our request, Mr. Thomas explained that while he was a member of the Alcoholic...
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