Before Wagner, Chief Judge, Terry, Associate Judge, and King, Senior Judge. *fn*
The opinion of the court was delivered by: King, Senior Judge
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Petition for Review of a Decision of the District of Columbia Alcoholic Beverage Control Board
Opinion for the court by Senior Judge King.
Opinion Concurring in part and Dissenting in part by Chief Judge Wagner at p.
Petitioners North Lincoln Park Neighborhood Association and Stewart Harris (hereinafter "NLPNA") seek review of a decision by the Alcoholic Beverage Control Board ("Board") to suspend the license to sell alcoholic beverages held by Samdo, Inc. Because this case is before the court for a second time, see North Lincoln Park Neighborhood Ass'n v. Alcoholic Beverage Control Bd., 666 A.2d 63 (D.C. 1995) (cited hereinafter as "NLP I"), and the underlying facts are set forth in considerable detail in our previous opinion, we will repeat only those necessary for our purposes here.
In NLP I, we remanded to the Board with instructions that it reconsider its 1993 renewal of Samdo's liquor license in light of our holding that the voluntary agreement reached by Samdo and NLPNA was an integral part of the license, and that any violations of the agreement must be considered by the Board in determining whether to renew the license. Id. at 67. Although the Board did consider the agreement on remand, we are not satisfied that there is record evidence to support the Board's determination that it should give virtually no weight to Samdo's violations of the terms of the agreement. Accordingly, we reverse and remand to the Board with instructions that it reconsider its determination for the reasons set forth below.
Samdo, Inc., holds the license for Trant's Liquors ("Trant's"), a Class A licensed liquor store located in the Lincoln Park neighborhood of Northeast Washington. *fn1 In 1990 NLPNA, along with other neighborhood organizations, protested the renewal of the license, claiming that the store's business practices led to disturbances in the neighborhood. This protest resulted in Samdo and NLPNA entering into a voluntary agreement which placed a number of conditions on the renewed license. *fn2 The "Settlement Agreement" stated that "[a]ll parties understand that this agreement constitutes a condition of the license and that failure to abide by the terms . . . will result in revocation of the license" (emphasis added). In return for Samdo's acceptance of the conditions of the agreement, NLPNA dropped its opposition to the 1990 license renewal. The Board approved the agreement and renewed Samdo's license. The record does not reflect the precise manner in which the Board approved the agreement, but the parties do not dispute that the Board in fact did so. In the last public proceeding before approval was given, the chairperson of the Board observed that "[i]f any part of that agreement is violated . . . the Board can then take up [the alleged violations] in a show cause hearing to determine whether the licensee's license should be suspended or revoked" (emphasis added).
During the 1992 relicensing proceeding, NLPNA again protested the renewal of Samdo's license, claiming that Samdo had not complied with the terms of the 1990 agreement. Samdo admitted that economic pressures had forced the business to violate a number of the terms of the settlement agreement soon after the agreement was reached. In response, the Board suspended Samdo's license for five days. The Board denied NLPNA's request for license revocation, however, ruling that any violation of the agreement was not a relevant issue for the 1992 renewal consideration. In 1993, the Board approved the license renewal, and NLPNA petitioned this court for review. In NLP I, we reversed and remanded the case to the Board, holding that
"under applicable regulations, the voluntary agreement legally became part of the license when the license was renewed in 1990, and that the Board therefore committed legal error in failing to take into account the licensee's violations of that agreement when it decided to renew the license in [the 1992 relicensing proceeding]." NLP I, supra, 666 A.2d at 64.
The Board was instructed that it "simply cannot ignore such violations" of the agreement, but must weigh them along with pertinent factors in D.C. Code § 25-115 (b) & (g) and relevant regulations in its license renewal considerations. Id. at 67.
After remand to the Board, NLPNA again sought immediate revocation of Samdo's license under the terms of the settlement agreement. Because the Board determined that Samdo had violated the terms of the agreement, NLPNA insisted that the Board revoke the license, as revocation was the only ...