Petition for Review of a Decision of the District of Columbia Alcoholic Beverage Control Board.
Before Terry, Farrell, and King, Associate Judges.
The opinion of the court was delivered by: Farrell
FARRELL, Associate Judge: This petition for review challenging the issuance of a class B license to intervenor to dispense alcoholic beverages presents both a standing and a merits issue. We hold first that petitioners, holders of liquor licenses in the same neighborhood as intervenor, have standing to assert the violation of a regulation prohibiting the issuance of a liquor license to an establishment located within 400 feet of another licensee. Second, we hold that the Alcoholic Beverage Control Board failed to provide a reasoned basis for deviating from its past construction of a regulation requiring it to measure "the shortest distance" between establishments in applying the 400 foot rule. We vacate the Board's decision and remand for further proceedings.
23 DCMR § 301.2 (1988) provides that "no Retailer's License Class B *fn1 shall be issued for, nor transferred to, any premises which are located four hundred feet (400') or less from another Retailer's License Class B." 23 DCMR § 104.1, at the time the present application was filed, provided in relevant part:
Whenever the Board is required to state the distance between one or more places (for example, the actual distance of one licensee from another . . .), the distance shall be measured linearly and shall be the shortest distance between the property lines of the places, as measured on, over or across any publicly traveled way, public park or public parking area.
On July 3, 1991, intervenor H & M Food Supply, Inc., t/a Metro Foods, through its president, Hyun S. Cho, applied to the District of Columbia Alcoholic Beverage Control Board (the Board) for a class B license to sell beer and light wine at 1325 Rhode Island Avenue, N.E. The Board held a fact-finding hearing to determine whether granting a license to Metro Foods would violate the 400 foot restriction of 23 DCMR § 301.2 because of Metro Foods' proximity to another holder of a class B license, Peter Yang, t/a Seven Deli and Market. At this and subsequent hearings, the following facts were established.
The 1300 block of Rhode Island Avenue, N.E., runs roughly east and west. At its east and west ends, the block intersects with 13th and 14th Streets, respectively, which run north and south. A traffic light is located at the intersection of 14th Street and Rhode Island Avenue. A crosswalk marked with white lines runs across Rhode Island Avenue in the middle of the block. A three-foot wide traffic island, in the middle of the street, runs from just before the crosswalk to the end of the 1300 block of Rhode Island Avenue.
A private parking lot runs along the south side of the 1300 block of Rhode Island Avenue from the crosswalk to the intersection with 14th Street. A row of stores comprising a small shopping center sits along the south boundary of the parking lot. Metro Foods, a "full service supermarket," is located in the shopping center at 1325 Rhode Island Avenue. Petitioner Brentwood Liquors, located next to Metro Foods, holds a class A liquor license. Existing class B licensee Seven Deli and Market, a grocery convenience store owned by petitioner Peter Yang, is located at 1318 Rhode Island Avenue, N.E., on the north side of the 1300 block of Rhode Island where the crosswalk intersects that block. Traversing Rhode Island Avenue by means of the crosswalk, the distance from Metro Foods to Seven Deli is 376.4 feet. *fn2 Crossing by means of the intersection of Fourteenth Street, the distance is 805.6 feet. *fn3
At the hearing, witnesses testified concerning traffic conditions and pedestrian safety in the 1300 block of Rhode Island Avenue. There was evidence that pedestrians cross Rhode Island Avenue at the intersection with Fourteenth Street a good deal more frequently than they cross at the crosswalk. Whereas a pedestrian can cross Rhode Island "safely" at either intersection, a consulting engineer for Metro Foods testified that it is dangerous to cross Rhode Island Avenue at the crosswalk.
At the Conclusion of the hearing, the Board found that " crosswalk [traversing Rhode Island Avenue is] used very infrequently by the public... appears to be fairly dangerous to use." The Board therefore decided that the measurement it would use for determining the shortest distance between Metro Foods and Seven Deli was by way of the Fourteenth Street intersection, yielding a distance of 805.6 feet. Hence, the Board concluded, the grant of a class B license to Metro Foods would not violate the 400 foot restriction. *fn4
On January 8, 1992, Seven Deli through Yang filed a motion for reconsideration of this ruling. At a January 22, 1992 status hearing, the Board, through Member James L. O'Dea III, Esquire, orally denied the motion. On September 16-17 and November 12, 1991, respectively, Brentwood Liquors and Matthew Shannon (an objector below) filed objections to the "appropriateness" of the grant of a license. See (supra) note 4. After a protest hearing on February 5, 1992, the Board issued an opinion and order on June 10, 1992, which rejected the appropriateness objections to the grant of a ...