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Holzsager v. District of Columbia Alcoholic Beverage Control Board

August 27, 2009

RICHARD HOLZSAGER, ET AL., PETITIONERS,
v.
DISTRICT OF COLUMBIA ALCOHOLIC BEVERAGE CONTROL BOARD, RESPONDENT.
SAFEWAY, INC., INTERVENOR.



Petition for Review of a Decision of the District of Columbia Alcoholic Beverage Control Board, (50243-03/066P).

The opinion of the court was delivered by: Thompson, Associate Judge

Argued April 7, 2009

Before WASHINGTON, Chief Judge, KRAMER and THOMPSON, Associate Judges.

By a pro se Petition for Review filed on November 16, 2007, Richard Holzsager, Sarah Green, Ruth Foster, and Ophelia Cowan sought review of an order of the District of Columbia Alcoholic Beverage Control Board ("the Board") granting a license to Safeway, Inc. ("Safeway") to sell beer and wine at its grocery store branch located at 6500 Piney Branch Road, N.W. ("the Piney Branch Road store").*fn1 We uphold the Board's decision to grant the license.

I.

The parties agree on the sequence of events leading to this appeal. On May 12, 2003, Safeway applied to the Board for a Class B retailer's license for the Piney Branch Road store. At the time, District of Columbia law provided two routes by which members of the community could formally oppose an application seeking a new liquor license: (1) by lodging a protest with the Board (see D.C. Code § 25-601 (2001), amended by D.C. Law 16-191, § 47 (a) (2007)); and (2) by petitioning the Board to authorize the initiation of a referendum process (see D.C. Code §§ 25-603 - 608 (2001), repealed by Omnibus Alcoholic Beverage Amendment Act of 2004, D.C. Law 15-187 § 101 (2004)). D.C. Code § 25-603 (a) provided that "the Board shall deny an application for a new license . . . upon receiving valid written objections from the majority of registered voters residing within a 600-foot radius of the establishment to be licensed." Seven District of Columbia residents (including petitioner Foster) filed a referendum petition in opposition to Safeway's application. In addition, petitioner Green represented a group of residents who filed a protest to Safeway's application pursuant to D.C. Code § 25-601 (2001).*fn2 On July 23, 2003, the Board decided to hold the protest in abeyance until resolution of the referendum process.

On December 15, 2003, with the Board having authorized initiation of the referendum process, Mr. Holzsager, Ms. Green and other volunteers began the process of collecting signatures from registered voters who resided in the relevant area and who objected to Safeway's application. On January 24, 2004, petitioners submitted to the Board petitions bearing 269 signatures. As reported by the District of Columbia Board of Elections and Ethics, the number of registered voters residing in the relevant area was 617. Thus, the number of petition signatures was less than a majority of eligible registered voters as reported by elections officials. However, in a memorandum dated March 17, 2004, Alcoholic Beverage Regulation Administration Program Manager Laura Byrd advised the Board that, once adjustments were made for registered voters who had moved away, died, or been double-counted, there were only 506 eligible registered voters in the relevant area, meaning that 254 or more signatures would suffice for a majority. According to Byrd's memorandum, the submitted petitions included 269 "valid signatures."

On April 1, 2004, Safeway filed a challenge to the validity of the signatures pursuant to D.C. Code § 25-607 (2001). The Board scheduled a hearing on Safeway's challenge for June 30, 2004, but, at petitioners' request, rescheduled it for July 28, 2004. During the July 28, 2004 hearing, Safeway objected to the validity of the referendum petitions on a variety of grounds.

Safeway took issue with the Alcoholic Beverage Regulation Administration Program Manager's recommendation that the Board rely on a number of registered voters that differed from the number reported by the Board of Elections and Ethics. Safeway also argued that some petition circulators had, in violation of then-applicable regulations (23 DCMR §§ 1701, 1702.2(f), 1704.1 (1988)), failed to indicate in their affidavits whether they had received compensation for circulating the petition, failed to require each signer to print his or her name alongside his or her signature, and materially altered the petition. In addition, Safeway challenged the reliability of statements that petition circulators had obtained from persons who reported that registered voters shown on the Board of Elections and Ethics list had moved away or had died. At the end of the hearing, the Board closed the record to further submissions from the parties, and took the matter under advisement.

Meanwhile, on June 23, 2004, the Council of the District of Columbia had passed the Omnibus Alcoholic Beverage Amendment Act of 2004, D.C. Law 15-187 (the "Act"), with an effective date of September 30, 2004. The Act repealed D.C. Code §§ 25-603 through 25-608, thereby eliminating the referendum process as a means of challenging license applications. See D.C. Law 15-187, § 101 (y); 51 D.C. REG. 9798 (Oct. 22, 2004). On February 1, 2006, with the Board still not having issued a decision on Safeway's challenge to the referendum petition or on Safeway's license application, Safeway filed a motion to dismiss the referendum petition on the basis of the Act. The Board dismissed the referendum petition on July 12, 2006,*fn3 stating that, in light of the change in the law, it "no longer possess[ed] jurisdiction" to deny a license on the basis of the referendum petition.*fn4

Subsequently, the Board held hearings on the pending protest, during which multiple witnesses testified regarding the community-safety, quality of life, economic, and other implications of authorizing Safeway to sell wine and beer at the Piney Branch Road store. On September 20, 2007, the Board granted Safeway's license application subject to certain conditions. The Board declined to reconsider its decision.

II.

The primary issue on before us is whether the Board erred in dismissing the referendum petition on the basis of the Act, specifically, the Act's abolishment of the referendum process effective September 30, 2004. In determining whether the Board properly applied this change in the law to the referendum that was pending, we must begin by asking whether, in making this change, the Council of the District of Columbia "expressly prescribed the statute's proper reach."

Landgraf v. USI Film Prods., 511 U.S. 244, 280 (1994). If the Council did so, "there is no need to resort to" rules of construction about whether a statute should be applied to pending cases or given retroactive effect.*fn5 Id. If, however, the "statute contains no such express command," we must determine whether applying it to a pending case "would have retroactive effect, i.e., whether it would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed." Id. If a statute truly would have retroactive effect -- a matter that is not always easy to determine*fn6 -- the "traditional presumption teaches that it does not govern absent clear [legislative] intent favoring such a result." Id. Stated differently, the foregoing principles dictate that "the law in effect at the time a decision is rendered shall not be applied where 'doing so would result in manifest ...


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