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Smart Aziken v. District of Columbia Alcoholic Beverage Control Board

October 20, 2011


Petition for Review of a Decision of the Alcoholic Beverage Control Board (60856-06/040C)

The opinion of the court was delivered by: Terry, Senior Judge:

Argued March 12, 2010

Before PRYOR, TERRY, and STEADMAN, Senior Judges.

Petitioner Aziken operated a nightclub known as Smarta Broadway, located at 1919 Ninth Street, N.W., for which he held a Retailer's Class CN alcoholic beverage license. That license was revoked, following hearings held in the wake of the shooting death of a seventeen-year-old girl at the club. Mr. Aziken now argues that he was denied due process in the hearings before the Alcoholic Beverage Control Board ("the Board") and that the evidence was insufficient to support the Board's decision to revoke his license. We reject both arguments and affirm the final order of the Board.


The incident that led to the license revocation occurred on January 20, 2007, when a seventeen-year-old girl was shot and killed inside the club by the male companion of a disgruntled female patron who had been ejected from the club some time earlier. The shooter confronted the security personnel at the club, striking at them with his pistol and then firing a shot at one of them. The shot missed its intended target, but it struck and killed Taleshia Ford, another club patron.

In the aftermath of the shooting, the club was closed for ninety-six hours by the Chief of Police, Cathy Lanier, in accordance with District of Columbia law, pending a hearing to determine whether its continued operation presented an "imminent danger to the health and welfare of the public . . . ." D.C. Code § 25-827 (b)(1) (2011 Supp.). Before the ninety-six hours expired, Chief Lanier formally requested that the Board revoke petitioner's license for public safety reasons, noting several other instances of criminal activity which had also been linked to the club. See D.C. Code § 25-827 (a) (2011 Supp.) (authorizing Chief of Police to request suspension or revocation of a license under certain circumstances). The Board issued a notice to petitioner, directing him to show cause why his license should not be revoked and setting forth five specific charges, including: an increase in crime within 1000 feet of the establishment, permitting the use of controlled substances on the premises, operating under an unapproved name, allowing the establishment to be used for unlawful purposes, and violating certain alcoholic beverage regulations.

Hearings on the Chief's request to revoke petitioner's license were held on three dates: April 4, June 12, and September 25, 2007. In preparing for those hearings, petitioner requested subpoenas for various witnesses and documents. Specifically, he sought testimony by police officers, employees of a security service, and Police Chief Lanier, as well as discovery of the police department's records of calls for service at the club. These discovery requests were made on March 22, approximately two weeks before the scheduled date of the first hearing.

At the beginning of the April 4 hearing, petitioner objected to the proceedings because he had not received responses to all of his discovery requests. After reviewing those requests, the Board ruled that the hearing could proceed, but that petitioner could later recall any of the witnesses for further cross-examination after the requested discovery had been completed. Petitioner's request to subpoena the Chief of Police was denied, but responses to all of the other discovery requests were submitted by June 22, although petitioner chose not to recall any witnesses based on those responses. At the final hearing in September, petitioner conceded that there were no "procedural issues" outstanding.

Over the three days of hearings, approximately twenty witnesses testified about public safety incidents related to the club. In particular, Metropolitan Police Officers Patrick Burke and Larry McCoy testified that, on the basis of their personal knowledge acquired by responding to repeated incidents at the club, they assisted Police Chief Lanier in drafting the letter calling for the license revocation. Officer Burke told the Board that there were requests for police at the establishment on the night of the January 20 shooting, two months earlier for a fight that ended with a stabbing on November 19, 2006, and on another date in June 2006 when gunshots were fired outside after a fight spilled from the club onto the sidewalk. Officer McCoy testified that crime had vastly increased in the area since the club had opened, a change that he attributed to "drugs being sold, underage drinking, people getting stabbed, and then ultimately somebody getting killed" at the club.

Several other police officers also testified about their experiences in responding to complaints at the club. Their testimony included personal observations of crowd control problems, underage intoxicated patrons, and marijuana use at the club, as well as arrests for unlicensed possession of firearms on the premises. This testimony was corroborated by the former security supervisor for the club, David Lorenzo Smith. Mr. Smith testified that there were no consistent guidelines for security personnel, but that Mr. Aziken told him "not to worry about it" when he complained that patrons were frequently smoking marijuana in the club, and that underage patrons were being served alcohol almost every night. Smith told the Board that he had been ordered by Mr. Aziken to admit underage individuals but to increase their cover charge.

The testimony of Mr. Smith and the police officers about underage patrons and drinking was supported by testimony from other customers of the club, including eighteen-year-old Ashley Cunningham and twenty-year-old Tawana Gantt, both of whom frequently attended parties there. Ms. Cunningham confirmed that by paying an extra five dollars at the door, over and above the regular cover charge, she would be admitted without legal identification. She also testified that she and her friends had been served alcohol at the club, sometimes by Mr. Aziken himself, and that "everyone from around that neighborhood, all the younger kids go to that club [because] it's like the only club you can get into [at] that age." Ms. Gantt likewise testified to the additional cover charge for minors without identification. She also said that marijuana was commonly used at the club and that "every time" she was there she witnessed at least one fight. Another patron, a mother who rented the club for her son's band, testified that petitioner sold alcohol to minors, served alcohol after closing, and maintained a "VIP room" where patrons could smoke marijuana.

Ms. Cunningham was present on the night of the shooting. She testified that on January 20, 2007, she and three friends, all of whom were seventeen years old at the time - including Taleshia Ford - went to the club, where they had gone a few times before. The club was "very crowded"; Ms. Cunningham estimated that there were "more than 100" people there. Mr. Aziken, the owner, was working as the bartender that night. As Ms. Cunningham and her friends sat listening to the music, they noticed a "commotion going on in the back. A gunshot was fired, and everybody ran." When the lights came on after a minute or so, Ms. Cunningham saw her friend Taleshia Ford lying on the floor. Police officers and paramedics soon arrived, and Ms. Ford was taken to a hospital, where she was pronounced dead about an hour later.*fn1

Petitioner Aziken testified that his business was based primarily on leasing the club for parties and that the lessee for each event was responsible for security during that event. He also denied selling or authorizing the sale of alcohol to minors and ...

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