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Chase v. District of Columbia Alcoholic Beverage Control Bd.


July 20, 1995


On Petition for Review of an Order of the District of Columbia Alcoholic Beverage Control Board.

Before Schwelb and King, Associate Judges, and Kern, Senior Judge.

The opinion of the court was delivered by: Schwelb

SCHWELB, Associate Judge: On December 22, 1993, following a public hearing, the District of Columbia Beverage Control Board granted the application of H.H. Leonards, Inc., trading as H.H. Leonards Associates (HHLA), for a Class CX retailer's license for a "club" at "The Mansion," a century-old four-story townhouse located at 2020 O Street, N.W., in a residential neighborhood in Washington, D.C. Petitioners, a group of neighbors and a condominium owners' association, have asked this court to set aside the Board's decision. They contend, inter alia, that the license application was filed less than three months after the club came into existence, in violation of D.C. Code § 25-111 (a)(7)(G) (1991). *fn1 We agree and reverse.


HHLA was organized in August, 1990 as an unincorporated non-profit membership association. In or about 1992, petitioner Susan Menzer, a Justice Department attorney who lived in the area, became concerned because, among other things, valet parking aides at The Mansion closed off the street to her home following an event at the establishment. She also testified that, on days following such events, she would find empty glasses in her garden. She began to investigate, and learned that although alcoholic beverages were served at 2020 O Street, N.W., no liquor license had been issued to anyone at that address. Ms. Menzer complained to the Board, but she was referred to the Metropolitan Police Department because the Board lacked jurisdiction over unlicensed retailers. The police ultimately visited The Mansion and brought the complaint to the attention of HHLA.

Upon learning of the problem, the officers of HHLA voted to incorporate as a non-profit corporation and to apply for a retailer's license. On December 8, 1993, a certificate of incorporation was issued to HHLA. On January 13, 1993, H.H. Leonards, Inc., which represented itself to be "trading as" HHLA, applied to the Board for a license for a "club."

Ms. Menzer and the other petitioners filed submissions with the Board in which they opposed the application on a number of grounds. They contended, inter alia, that the application was invalid under D.C. Code § 25-111 because the "club" seeking a license was not established in time. The Board held extensive public hearings in June and July, 1993, with respect to HHLA's application.

On December 22, 1993, the Board issued its "Findings of Fact, Conclusions of Law, and Order." With respect to the issue addressed in this opinion, the Board held as follows:

Section 11 of the Act, D.C. Code § 25-111(a)(7)(G)(ii) (1991), provides that no Class "CX" license shall be issued for a club that has not been established for three (3) months immediately prior to applying for the license. Section 3(g) of the Act, D.C. Code § 25-103(7) (1991), defines a club as a non-profit corporation but does not specify the length of time a club must be incorporated prior to applying for the license. The legislative history of the Act evidences an intent on the part of the Congress, when adopting the requirement that clubs be in existence for at least a three (3) month period before application for a license, to ensure that only bona fide clubs, as opposed to establishments existing only to serve liquor by the drink, would be licensed. 78 Congressional Record, 268-289, 695-698, 770-776.

Applicant was incorporated as a non-profit corporation in December, 1992, less than three (3) months prior to applying for licensure. However, the Applicant's club was established as a non-profit membership organization in 1990, more than two (2) years prior to its application for licensure. The Board concludes as a matter of law that Applicant's establishment is a legitimate club, existing for purposes greater than the sale of liquor by the drink, that was established more than three (3) months prior to the date of its application for licensure. *fn2

The Board ordered that a retailer's license be issued for the premises. This petition for review followed.


In 1934, Congress enacted legislation which repealed most of the provisions of the National Prohibition Act and created a comprehensive regulatory regime for the manufacture, sale and possession of alcoholic beverages in the District of Columbia. See Act of January 24, 1934, 48 Stat. 319, now codified as D.C. Code §§ 25-101 et seq. The Act deals explicitly with the circumstances under which a private club may obtain a retailer's license, and provides that "no license shall be issued for a club that has not been established for at least 3 months immediately prior to applying for the license." D.C. Code § 25-111 (a)(7)(G)(ii). The Act further provides that "the word 'club' means a corporation for the promotion of some common object (not including corporations organized for any commercial or business purpose, the object of which is money profit) . . . ." D.C. Code § 25-103 (7).

HHLA became a corporation on December 8, 1992, approximately five weeks (and thus less than three months) before it applied for a retailer's license. It was not a corporation three months prior to the filing of the application. A club is, by statutory definition, a corporation. Thus, according to the unambiguous terms of the statute, HHLA could not have been established as a club for three months immediately prior to applying for the license, as required by § 25-111 (a)(7)(b)(ii).

HHLA contends, and the Board held, that a club had been in existence since 1990, when a membership association was formed, and that the statutory three-month period was therefore satisfied. HHLA obviously applied for a retailer's license, however, because without such a license, its provision of alcoholic beverages to members and guests was proscribed by law, see D.C. Code § 25-109, and subject to criminal sanctions, including fine or imprisonment, see D.C. Code § 25-132; Hicks v. District of Columbia, 234 A.2d 801, 802-03 (D.C. 1967). We are of the opinion that the two years or more during which HHLA's service of alcoholic beverages was prohibited by law cannot reasonably be considered as a part of the statutory three-month waiting period.

HHLA argues, and the Board held, that according to the Act's legislative history, the waiting period was "designed to ensure that only bona fide clubs, as opposed to establishments existing only to sell liquor by the drink, would be licensed." The legislative history submitted to us by HHLA, however, consists of excerpts from the floor debate in the House of Representatives and in the Senate in January 1934. Floor debate is seldom illuminating with respect to legislative intent, for it represents the views only of one or two of several hundred legislators. See, e.g., Bath Iron Works Corp. v. Director, Office of Workers' Compensation Programs, 121 L. Ed. 2d 619, 113 S.Ct. 692, 700 (1993); Aldridge v. Williams, 44 U.S. (3 How.) 9, 24, 11 L. Ed. 469 (1845); Cortelyou v. United States, 32 App. D.C. 20, 29 (1908). *fn3 Moreover, in 1934, the Twenty-First Amendment was still a controversial novelty, and most of the Discussion which HHLA has asked us to consider relates to the pros and cons of alcohol and its prohibition.

The portion of the debate which appears to touch directly on the issue now before us occurred in the Senate on January 17, 1934. Senator Clark of Missouri, apparently an opponent of the proposed legislation, told the Senate that after the legislature of his state enacted a Sunday closing law, numerous "lid clubs" were established in order to circumvent the ban. The cost of joining these "lid clubs" was 25 cents, and, according to Senator Clark, they were "saloons as much as the saloons which had been outlawed on Sundays, although they did not carry the same title." 78 Cong. Rec. 776 (Jan. 17, 1934). Senator Reynolds, evidently a supporter of the proposed legislation, responded as follows:

We have in this act endeavored to legislate against that, and I think we have been successful, in that we require that a club shall have been in legitimate existence for a period of at least 3 months prior to the issuance *fn4 of the license; so, as a result thereof, it would be impossible for a lot of clubs to spring up like mushrooms overnight.


Where the language of a statute is clear and unambiguous, we must give effect to its plain meaning, J. Parreco & Son v. District of Columbia Rental Hous. Comm'n, 567 A.2d 43, 45 (D.C. 1989), and there is ordinarily no occasion for resort to legislative history. Wilbur v. United States, 284 U.S. 231, 237, 76 L. Ed. 261, 52 S. Ct. 113 (1931); see also In re W.L., 603 A.2d 839, 842 (D.C. 1991). Moreover, even if we were disposed to accord significant weight to floor debate -- and we are not -- the foregoing exchange is far too fragmentary to permit us to construe this legislation more narrowly than its unambiguous words import. Nothing in the statute limits the applicability of the three-month waiting-period to "lid club" situations. Indeed, Senator Reynolds viewed the statute as requiring that a club shall be in "legitimate existence" for this three-month period. An association which has dispensed alcoholic beverages during the critical period without a license to do so cannot meet this standard.

HHLA argues, correctly, that the scope of our review is limited, see, e.g., Muir v. District of Columbia Alcoholic Beverage Control Bd., 450 A.2d 412, 413-14 (D.C. 1982), and that we must defer to the agency's interpretation of the statute if it is not plainly wrong or inconsistent with the legislative purpose. See Coumaris v. District of Columbia Alcoholic Beverage Control Bd., A.2d , Nos. 94-AA-139, & 94-AA-241, slip op. at 5-6 (D.C. June 22, 1995). But "it is only in cases of doubt that the construction given to an act by the department charged with the duty of enforcing it becomes material." Burnet v. Marston, 61 App. D.C. 91, 92, 57 F.2d 611, 612 (1932) (quoting United States v. Tanner, 147 U.S. 661, 663, 37 L. Ed. 321, 13 S. Ct. 436 (1893); see generally Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-43, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984)). "If the language of the statute involved is clear, we do not defer to the agency's interpretation." Bates v. District of Columbia Bd. of Elections & Ethics, 625 A.2d 891, 893 (D.C. 1993). In the present case, Congress has unambiguously stated that a club must be a corporation, and we discern no ambiguity which would warrant deference to the Board's construction. *fn5

The result in this case may appear somewhat harsh. The Board's order granting HHLA's application for a retailer's license was issued on December 22, 1993, almost a year after the application was filed. If § 25-111 (a)(7)(G)(ii) required only that the club be in existence at least three months prior to the issuance of the license (as Senator Reynolds apparently believed it did) then the statutory requirements would easily have been met. "It is not within the judicial function, however, to rewrite the statute, or to supply omissions in it, in order to make it 'more fair' . . . ." 1841 Columbia Road Tenants Ass'n v. District of Columbia Rental Hous. Comm'n, 575 A.2d 306, 308 (D.C. 1990). In the words of Justice Brandeis, written for a unanimous Supreme Court,

the statute was evidently drawn with care. Its language is plain and unambiguous. What asks is not a construction of a statute, but, in effect, an enlargement of it by the court, so that what was omitted, presumably by inadvertence, may be included within its scope. To supply omissions transcends the judicial function.

Iselin v. United States, 270 U.S. 245, 250-51, 70 L. Ed. 566, 46 S. Ct. 248 (1926). *fn6


For the foregoing reasons, the Board's decision is reversed, and the case is remanded to the Board with directions to deny HHLA's application for a retailer's license and to revoke the license previously issued.

So ordered.

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