TIGER WYK v. Alcoholic Beverage Control Bd., 01-AA-1173.

• Decision Date: 29 May 2003
• Docket Number: No. 01-AA-1173.,01-AA-1173.
• Citation: 825 A.2d 303
• Parties: TIGER WYK LIMITED, INC., Petitioner v. DISTRICT OF COLUMBIA ALCOHOLIC BEVERAGE CONTROL BOARD, Respondent
• Court: D.C. Court of Appeals

825 A.2d 303

TIGER WYK LIMITED, INC., Petitioner v. DISTRICT OF COLUMBIA ALCOHOLIC BEVERAGE CONTROL BOARD, Respondent

No. 01-AA-1173.

District of Columbia Court of Appeals.

Argued September 26, 2002.

Decided May 29, 2003.

Nigel L. Scott for petitioner.

Mary T. Connelly, Assistant Corporation Counsel, with whom Robert R. Rigsby, Corporation Counsel at the time the brief was filed, and Charles L. Reischel, Deputy Corporation Counsel, were on the brief, for respondent.

Before TERRY, REID, and WASHINGTON, Associate Judges.

TERRY, Associate Judge:

Petitioner Tiger Wyk Limited, Inc. ("Tiger"), challenges an order of the Alcoholic Beverage Control Board ("the Board") which denied, on reconsideration, Tiger's transfer application for a Retailer's Class B license.¹ Tiger presents three arguments for reversal. It contends, first, that the Board's decision is not supported by substantial evidence; second, that the Board deviated from its traditional interpretation of the governing regulations when it ruled that granting Tiger's application would result in an overconcentration of licensed establishments; and third, that the Board improperly shifted the burden of proof by requiring Tiger to show that real estate values in the neighborhood would not be adversely affected if the application were granted. We hold that there was substantial evidence to support the Board's order and that the Board properly applied the regulations in making its decision. We also hold that the Board did not err in placing the burden of proof on Tiger because a regulation required it to do so. Accordingly, we affirm the Board's order.

I

In 1997 Tiger sought the Board's approval of the transfer of a Class B license to a full-service grocery store ("Tiger Mart") which it planned to open in a small shopping plaza at 300 Riggs Road, N.E.² After learning of the application, a group of neighborhood residents filed a protest in opposition.³ Before the store opened, Tiger agreed to withdraw its application because of the overwhelming negative response from the community. In January 1998, however, Tiger re-filed its application with the Board. Neighbors again objected, claiming that in addition to the likelihood of overconcentration,⁴ granting Tiger a license would adversely affect the peace and quiet of the community and would have a detrimental effect on neighborhood property values.

A. The First Hearing and the First Order

On June 17 and June 24, 1998, the Board held a public hearing on Tiger's application. Willie Blount, an investigator with the Department of Consumer and Regulatory Affairs assigned to the Board, testified that the area surrounding Tiger Mart is primarily residential in nature and that Tiger Mart is in a C-1 zoning district.⁵ According to Mr. Blount, there were four other businesses with alcohol licenses in the immediate vicinity, three of which were no more than one block away, "within sight" of Tiger Mart;⁶ the fourth, a wholesale distributor (House of Wines, Inc.) which was not open to the public, was two or three blocks away. It was Mr. Blount's "professional opinion" that there was already an overconcentration of licensed retail establishments ("two A's and a B") in the neighborhood.

Several local residents testified against Tiger's application for a license transfer. Their principal contention was that granting a license would result in an overconcentration of licensed establishments in the neighborhood. They also stated that the licensed stores that were already there had trash problems and that the neighborhood was struggling to deal with loitering and panhandling. One witness, Amanda Lyons, an Advisory Neighborhood Commissioner, testified that loitering and public drinking had been a problem at nearby Dakota Liquors and voiced concern that similar activities would take place in the shopping plaza if Tiger Mart were granted a license. In fact, Ms. Lyons had recently seen individuals loitering and drinking in an area adjacent to Tiger Mart's parking lot, which she reported to the police. Other witnesses testified that public drinking and loitering were already a problem in the shopping plaza and reported seeing men drinking out of containers hidden in brown paper bags. Clayton Butler, another longtime resident and former president of the Lamont-Riggs Citizens Association, said that he had obtained signatures from more than 745 people in the neighborhood who were opposed to Tiger Mart's obtaining a license, primarily because they feared overconcentration. Still another witness, Reverend Grayland Ellis Hagler, commented that the presence of yet another alcohol-licensed business would result in further decline of an already vulnerable neighborhood.

Ronnie Kim, the co-owner of Tiger Mart, acknowledged that his need for a license was based on a desire for increased profits. He did not recall having trouble with loiterers inside or outside his store, but he conceded that on occasion he noticed some in the surrounding area. Mr. Kim could not comment on whether property values in the neighborhood had gone down since he opened his store.

On December 16, 1998, the Board issued an order granting Tiger's transfer application for a Class B license. While the Board acknowledged the presence of four other licensed establishments in the surrounding area, it ruled that granting a license to Tiger would not have an adverse effect on the peace, order, and quiet of the neighborhood. The Board was persuaded, in part, by Tiger's "successful experience in operating a similar full service grocery store . . . offering beer and wine" in nearby Prince George's County, Maryland. The Board also found that granting a license to Tiger would not "create or contribute to an overconcentration [of licensed establishments] because of the relatively small amount of floor space" that would be used for the sale of beer and wine, and thus would not have an adverse effect on local property values.

B. The Second Hearing and the Final Order

Community members promptly filed a motion for reconsideration of the Board's decision.⁷ The focus of the motion was on an alleged disagreement about the distance between Tiger Mart and the other nearby licensed businesses.⁸ The motion also asserted that the Board's conclusions relating to overconcentration were not based on substantial evidence.

On June 23, 1999, and February 9, 2000, the Board held another hearing to consider evidence on the distances between Tiger Mart and the other licensed businesses in the neighborhood and to address the issues raised in the motion about overconcentration. Several months later, the Board issued new Findings of Fact, Conclusions of Law, and a Proposed Order announcing its intention to reverse its earlier decision granting Tiger's application for a Class B license transfer. This new decision was based on a finding that Tiger had not demonstrated that another Class B license was appropriate for the neighborhood. It noted, in addition, that Tiger had failed to provide sufficient credible evidence that granting a license would not have an adverse effect on property values. The Board also found persuasive the Advisory Neighborhood Commission's unanimous opposition to Tiger's application and its belief that granting a license in this case would add to the problems of loitering, panhandling, and public drinking in the area.

Tiger filed exceptions to the Board's order, but on May 30, 2001, the Board issued its final decision denying Tiger's application. The denial was based on the overwhelming problems of overconcentration, community disapproval, and Tiger's failure to show that there would not be a decline in property values if the license were granted. Tiger then moved for reconsideration and a stay of the Board's order, but its motion was denied.

II

Unless the Board has committed an error of law, this court will overturn its decision only if it is unsupported by substantial evidence. See D.C.Code § 2-510(a)(3)(E) (2001); Park v. District of Columbia Alcoholic Beverage Control Board, 555 A.2d 1029, 1031 (D.C.1989); Foggy Bottom Ass'n v. District of Columbia Alcoholic Beverage Control Board, 445 A.2d 643, 645 (D.C.1982). 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, 83 L.Ed. 126 (1938) (citations omitted). Our task, therefore, is "to assess . . . the logical connection between the evidence and conclusions, but not to substitute our judgment for that of the administrative agency." Kopff v. District of Columbia Alcoholic Beverage Control Board, 381 A.2d 1372, 1387 n. 26 (D.C.1977) (citations omitted).

Tiger claims that the Board did not have sufficient evidence, on reconsideration, to deny its transfer application. Our review, however, is not confined just to the evidence before the Board at the second hearing. On the contrary, long-established case law makes clear that we examine the entire administrative record, not just a portion of it, in considering whether an agency decision is supported by substantial evidence. See, e.g., Williamson v. District of Columbia Board of Dentistry, 647 A.2d 389, 394 (D.C.1994)

("factual findings must be supported by substantial evidence on the record as a whole"); 4934, Inc. v. District of Columbia Dep't of Employment Services, 605 A.2d 50, 53 (D.C. 1992) (agency's findings of fact must be affirmed "if they are supported by substantial evidence in the record as a whole"); Neer v. District of Columbia Police & Firemen's Retirement & Relief Board, 415 A.2d 523, 526 (D.C.1980) ("the Board's decision [may be overturned] only if its findings are unsupported by substantial evidence in the record as a whole"). In the case before us, therefore, we must examine the record of the first hearing, as well as the second hearing, to determine whether the Board's decision has sufficient evidentiary...