On Petition for Review of a Decision of the District of Columbia Alcoholic Beverage Control Board.
Before Steadman and Schwelb, Associate Judges, and Pryor, Senior Judge. Opinion for the court by Associate Judge Schwelb. Concurring statement by Senior Judge Pryor.
The opinion of the court was delivered by: Schwelb
SCHWELB, Associate Judge: Tom Coumaris asks us to review a decision of the District of Columbia Alcoholic Beverage Control Board granting Circle I Productions, Inc. a license to sell alcoholic beverages at a nightclub in northwest Washington, D.C. Coumaris had submitted a petition proposal to the Board in opposition to the application. This submission was the first step towards what Coumaris hoped would be the exercise of a neighborhood veto, which was to be accomplished by collection, in support of the protest, of the signatures of a majority of the voters residing within a 600-foot radius of the establishment. See D.C. Code § 25-115 (e) (1991). The Board rejected the petition upon the ground that the supporting statement contained false representations of fact.
In this court, Coumaris' primary contention is that the Board exceeded its authority in rejecting the petition outright. Because the Board failed to articulate the legal basis for its exercise of that authority, we remand the case for further proceedings.
In February 1993, Circle I filed an application with the Board for a retailer's class C/N license to sell alcohol at a nightclub at 1831 14th Street, N.W. On April 12, 1993, Coumaris circulated to residents in the vicinity of the proposed establishment a flyer detailing his objections to Circle I's application. Coumaris claimed that "what [Circle I] never discloses is that real application (copy attached) is for a public hall . . . and for a nightclub license -- all liquor no food." This statement was untrue, *fn1 for Circle I proposed to serve food at the establishment.
Coumaris also attached to his flyer what purported to be a copy of Circle I's Certificate of Occupancy. On the copy, however, he obliterated the language indicating that use of the premises as a restaurant was authorized. He attached the cover sheet to Circle I's public hall license, but selectively omitted those portions which showed that Circle I had also applied for a restaurant license.
In his flyer, Coumaris further asserted that once granted, liquor licenses had "no mortality; they live forever." He implied that such licenses are freely transferable and renewable and that members of the public would have no opportunity to protest a renewal or transfer of the license before the Board. This representation was inaccurate. See, e.g., Donnelly v. District of Columbia Alcoholic Beverage Control Bd., 452 A.2d 364, 365-66 (D.C. 1982).
The District of Columbia Alcoholic Beverage Control Act, D.C. Code §§ 25-101, et seq. (1991) ("the Act"), authorizes a process by which residents of the immediate area in which a license to sell alcoholic beverages is sought may oppose the issuance of the license. A majority of the registered voters within a 600-foot radius of the applicant's premises are effectively given a veto power over the application. See Gerber v. District of Columbia Alcoholic Beverage Control Bd., 499 A.2d 1193, 1197 (D.C. 1985); MacArthur Liquors, Inc. v. Palisades Citizens Ass'n, 105 U.S. App. D.C. 180, 265 F.2d 372 (1959). An eligible objector may initiate the petition process by submitting to the Board a petition proposal, which must be accompanied by a statement of no more than 100 words identifying the basis for the objection. D.C. Code § 25-115 (e)(3).
On April 27, 1993, Coumaris submitted his petition proposal to the Board. His primary stated basis for objecting to the issuance of the license was that "a nightclub license, which does not require food, for a building with a legal seated occupancy of 499 persons is incompatible with our adjoining residential area." In addition, Coumaris again represented that "such a license can be transferred."
On May 12, 1993, Circle I filed a motion to dismiss the petition, claiming that Coumaris' petition proposal materially mischaracterized the nature of Circle I's establishment. Circle I asserted that Coumaris had falsely represented that the proposed establishment would not serve food, when in fact it would, and that a license, once issued, was automatically transferable, when in fact a transfer could not be accomplished without leave of the Board. Circle I argued that Coumaris had irreparably tainted the petition process by circulating false and misleading information to residents of the neighborhood.
On June 16, 1993, the Board, through its Chair, Mary Eva Candon, orally granted Circle I's motion to dismiss Coumaris' petition. The decision was grounded on the "cumulative misrepresentation of the nature of the establishment that produced bias on the part of those reading the petition and the material misrepresentations of fact." Ms. Candon cited
the repeated mentioning that the licensee would have no food . . . was a material misrepresentation of fact, and this went beyond...the face of the petition, with the attached Certificate of Occupancy which was materially altered to prevent anyone signing the petition from recognizing that the license was a restaurant license. . . . Another point is that it misrepresents to the ...