The opinion of the court was delivered by: JOYCE HENS GREEN
Having had its application for a liquor license denied by the District of Columbia Alcoholic Beverage Control Board ("Board") solely on the basis of a religious objection filed by the Lincoln Park United Methodist Church ("Church"), plaintiff, Espresso, Inc., t/a Park Cafe ("Espresso"), initiated this action against defendants, the District of Columbia ("District") and the Board, pursuant to 42 U.S.C. § 1983. Plaintiff asserts that 27 D.C.M.R. § 302, which, inter alia, prohibits the Board from considering a liquor license application made by an enterprise located within 400 feet of a church with 100 or more members, absent the consent of the church, violates the Establishment Clause of the First Amendment to the United States Constitution.
With the parties' consent, plaintiff's request for a preliminary injunction was converted to a motion for a permanent injunction. Oral argument was heard on April 28, 1995 on this motion and on defendants' motion to dismiss. For the reasons expressed below, plaintiff's motion for a permanent injunction is granted and defendants' motion to dismiss is denied.
Espresso operates a restaurant known as the Park Cafe, located at 106 13th Street, S.E., in the District of Columbia. The Park Cafe is prohibited from selling any alcoholic beverages because it does not have a liquor license. On or about August 4, 1994, Espresso applied for a Class CR liquor license, which would permit it to sell alcoholic beverages with meals at the Park Cafe.
The District has a municipal regulation with regard to liquor license applications that provides, in pertinent part:
LICENSES NEAR SCHOOLS, COLLEGES, UNIVERSITIES, CHURCHES AND RECREATION AREAS
302.1 Except as otherwise provided in this section, no license shall be issued for any establishment within four hundred feet (400') of any public, private, or parochial primary, elementary, or high school; college or university; church; or recreation area operated by the D.C. Department of Recreation, *fn2"
302.5 A license may be issued, in the discretion of the Board, for a place of business located within four hundred feet (400') of a church if one of the following conditions is met:
(a) The Board is satisfied that the church has an enrolled membership of less than one hundred (100) persons; or
(b) The church has one hundred (100) or more members, but the Board is satisfied that the church does not object to the granting of the license, as evidenced by a written statement to the Board from the proper governing body of the church.
302.6 A license may be issued for any place within the prohibited distance if, at the time the church, school, college, or university established its location, there was within four hundred [feet] (400') of the church, school, college, or university, a place of business holding a license of the same class as that applied for.
On February 1, 1995, the Board issued an Order Denying Application for a License. The Board found that the Church had an enrolled membership of more than 100 persons and was located within 400 feet of the Park Cafe. Stipulation, Exhibit B at 1. The Board further found that there were no licensed establishments within 400 feet of the Church when the ...