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December 10, 1998


Before Wagner, Chief Judge, and King, Senior Judge,[fn*] and Mack, Senior Judge. [fn*] Judge King was an Associate Judge of the court at the time of argument. His status changed to Senior Judge on November 23, 1998.

The opinion of the court was delivered by: Wagner, Chief Judge:

Petitioners, Roger P. Craig, James O. Duguid, Charlene A. James, and John B. McCabe (petitioners) seek review and reversal of a decision of the District of Columbia Alcoholic Beverage Control Board (Board) granting intervenor, Expresso, Inc., t/a Park Cafe (Park Cafe) a class CR license to sell alcoholic beverages in its restaurant. *fn1 Craig [721 A2d Page 586]

argues that the Board erred in granting the license. We affirm the Board's decision as to appropriateness for issuance of the license made under D.C.Code § 25-115(b) (1981). However, we reverse and remand the case to the Board for further proceedings consistent with this opinion, including determinations of whether Park Cafe meets the requirements for issuance of a license under D.C.Code § 25-116(a) (governing licenses in residential use districts) and § 25-115(g)(1)(A) (character of applicant).


Factual Background

Park Cafe filed an application with the ABC Board for a liquor license, class CR, for its restaurant located at 106 13th Street, S.E. On October 17, 1994, Craig and the other petitioners filed protest petitions under D.C.Code § 25-115(b) (198.1) objecting to Park Cafe's application on the grounds that, if granted, the establishment would adversely affect the: (a) peace, order and quiet of the neighborhood; (b) residential parking and vehicular and pedestrian safety; and (c) real property values. *fn2

Craig filed a motion to dismiss, or alternatively, for summary denial of the application on the grounds that, under D.C.Code § 25-116(a), the Board could not grant a liquor license for premises located in a residential zone, and Park Cafe stipulated to facts showing that the restaurant was in a residential zone and did not meet any of the statutory exceptions to the provision. Specifically, Craig pointed out that Park Cafe could not qualify under the statutory exceptions because: (1) its entrance is not located inside a hotel, club or apartment house, and (2) the restaurant's sign and display are visible from outside the building. The Board entered an order denying the motion to dismiss on November 1, 1995. Craig filed, and Park Cafe opposed, a motion for reconsideration. The Board granted the motion for reconsideration and set the case for briefing and an evidentiary hearing.

At the hearing, Park Cafe presented witnesses from the neighborhood who testified in support of granting the license. Park Cafe also placed in evidence the affidavit of the acting executive secretary of the Advisory Neighborhood Commission 6 B(ANC) showing neighbors' support for the application and the ANC Commission's vote in favor of Park Cafe's application. *fn3 On September 11, 1996, the Board issued its Findings of Fact, Conclusions of Law and Order, granting Park Cafe an ABC license, class CR.


The Board's Ruling

Based on the evidence, the Board made findings as follows. Park Cafe had operated a restaurant on the first floor of a two story building located at 106 13th Street, S.E. for the past six years. The restaurant seats fifty people, features recorded music and has adequate parking on nearby streets. The ABC Board's investigator made six visits to the area between November 1995 and April 1996 and found no rowdiness, noise, bad odors or criminal behavior around the restaurant. Park Cafe invested $430,000 in renovations and improvements to the property, including $10,000 to replace an exhaust fan after receiving a complaint from an adjoining property [721 A2d Page 587]

owner about noise from the old one. The restaurant's clientele are mainly neighbors or congressional staffers, who range in age between thirty and sixty years. Although several illegally parked vehicles were observed outside the restaurant on one occasion, the restaurant has not disrupted parking. Based upon the testimony of Park Cafe's expert witness, the Board found that the establishment will not have a negative effect on property values in the neighborhood. The expert was of the opinion that, to the contrary, the issuance of the license would enhance property values.

One of the petitioners opposed the license because employees of the restaurant park their cars in front of his house, and he is concerned that patrons might become inebriated and cause disturbances. Another petitioner had made an unsuccessful attempt to purchase the building, and she was dissatisfied with services rendered by the restaurant in catering an affair at her home. Another petitioner complained that cars parked in front of the restaurant. There was one witness who opposed the issuance of the license because parking was difficult there and because she had difficulty selling her house. However, the witness was unable to show that the inability to sell her property resulted from the operation of the restaurant.

The Board concluded that Park Cafe had shown that issuance of the license would not adversely affect the peace, order and quiet of the neighborhood, residential parking, vehicular traffic or pedestrian safety. It concluded that the restaurant for which Park Cafe sought the license is appropriate for the area in which located and granted ...

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