On Petition for Review of an Order of the District of Columbia Alcoholic Beverage Control Board (PRO-00094-10)
The opinion of the court was delivered by: Blackburne-rigsby, Associate Judge:
Before FISHER and BLACKBURNE-RIGSBY, Associate Judges, and SCHWELB, Senior Judge.
Opinion for the court by Associate Judge BLACKBURNE-RIGSBY.
Concurring opinion by Senior Judge SCHWELB at p. 17.
Petitioners David Mallof and Alexis Rieffel, on behalf of A Group of Three or More Individuals ("petitioners"), seek review of a final order terminating a voluntary agreement they entered into with Leeds the Way, LLC, t/a Hank's Oyster Bar ("Hank's"). Petitioners challenge respondent District of Columbia Alcoholic Beverage Control Board's ("Board") interpretation of D.C. Code § 25-446 (d)(4) (2004 Supp.), which authorizes the Board to amend or terminate a voluntary agreement once certain findings have been made. Petitioners contend that the Board failed to make two findings that are statutorily required for terminating voluntary agreements. We agree and conclude that the Board's interpretation of the statute is contrary to the plain meaning of the statute. We vacate the Board's order granting the termination of the voluntary agreement and remand this case to the Board for additional findings not inconsistent with this opinion.
In March 2005, Hank's applied for a transfer of its initial liquor license so that it could expand its establishment to include a sidewalk cafe. See D.C. Code §§ 25-762 (a) (2001) (explaining that prior to making interior or exterior changes, an establishment must obtain approval from the Board), 25-404 (a) (2001) (requiring that before an establishment can make a substantial change in the nature of its operation, it must file an amendment to its license application with the Board). Petitioners and another neighborhood organization protested the transfer application, pursuant to D.C. Code § 25-601 (2007 Supp.), alleging it would disrupt the peace, order, and quiet of the neighborhood, affect traffic and parking, and increase the concentration of establishments in the area serving alcohol. On May 4, 2005, Hank's entered into a voluntary agreement with petitioners whereby petitioners agreed to withdraw their protest of Hank's transfer application in exchange for Hank's agreement to implement certain restrictions. See id. § 25-446 (a) ("The applicant and any protestant may, at any time, negotiate a settlement and enter into a written voluntary agreement setting forth the terms of the settlement."). Among other things, Hank's agreed to limit its indoor capacity to sixty-five people and its outdoor sidewalk cafe capacity to twenty people; to stop serving alcohol two hours earlier than the statute requires for indoor seating, and three hours earlier for its sidewalk cafe; to keep noise levels down after 9:00 p.m.; and to abide by various other restrictions on its furniture storage and use of its outdoor, public space. The executed voluntary agreement was submitted to the Board for approval and on May 11, 2005, was incorporated into the Board's order approving Hank's transfer application. See D.C. Code § 25-446 (c) (explaining that once the Board determines that the voluntary agreement complies with the applicable laws and the applicant otherwise qualifies for licensing, it must approve the establishment's license application conditioned on compliance with the voluntary agreement, and must incorporate the text of the voluntary agreement in the order approving the license application). Because the voluntary agreement had no sunset provision, neither Hank's nor petitioners could modify the voluntary agreement's terms or terminate it until the agreement was in effect for at least four years. See id. § 25-446 (d)(1), (2).
On March 29, 2010, almost five years after entering the voluntary
agreement, Hank's filed a petition with the Board for termination of
the agreement. Petitioners
moved to dismiss Hank's petition, claiming that Hank's failed to show
it made a good faith attempt to contact or negotiate with them because
Hank's did not file a signed affidavit to that effect.*fn1
See D.C. Code § 25-446 (d)(4)(A) and (d)(5) (requiring an
applicant seeking to terminate the agreement to contact all the
parties, and to show through sworn affidavits that it at least
attempted to negotiate with them). At the protest hearing on Hank's
petition to terminate, the Board held that for terminations, there was
no need to make a finding regarding whether Hank's made a good faith
attempt to negotiate. See id. § 25-446 (d)(4)(A)(ii). The Board denied
petitioners' motion to dismiss, stating that the statute governing
termination of voluntary agreements requires only a finding that a
termination will not have an adverse impact on the neighborhood. See
id. § 25-446 (d)(4)(C). The Board then conducted an evidentiary
hearing and limited the testimony to establishing only whether there
was an adverse impact on the neighborhood. Finding no adverse impact,
the Board issued its final order on November 3, 2010, granting Hank's
petition to terminate the voluntary agreement and reiterating that
"[Hank's] d[id] not have to satisfy § 25-446 (d)(4)(A) . . . or §
25-446 (d)(4)(B) in order to terminate its Voluntary Agreement."
Petitioners now seek review of the Board's final order, asserting that the Board legally erred by concluding that termination of a voluntary agreement requires only a finding that the termination would not have an adverse impact on the neighborhood under § 25-446 (d)(4)(C), and does not require findings under the two antecedent provisions, § 25-446 (d)(4)(A) and (B).
This case turns on an interpretation of D.C. Code § 25-446 (d)(4), which authorizes the Board to amend or terminate a voluntary agreement under certain conditions. Whether the Board properly interpreted this statutory provision is a legal issue that we review de novo. See 2461 Corp. v. District of Columbia Alcoholic Beverage Control Bd., 950 A.2d 50, 53 (D.C. 2008). Generally, we defer to the Board's interpretation, given that it is the agency charged with administering § 25-446 (d). See 800 Water St., Inc. v. District of Columbia Alcoholic Beverage Control Bd., 992 A.2d 1272, 1274 (D.C. 2010). However, we will not defer to the Board's interpretation if it is plainly wrong or inconsistent with the governing statute. Mallof v. District of Columbia Bd. of Elections & Ethics, 1 A.3d 383, 391 (D.C. 2010); see also 1303 Clifton St., LLC v. District of Columbia, 39 A.3d 25, 30-31, 33-35 (D.C. 2012) (declining to defer to agency interpretation of its statute because the interpretation was not consistent with the purpose of the statute); Levelle, Inc. v. District of Columbia Alcoholic Beverage Control Bd., 924 A.2d 1030, 1035-36 (D.C. 2007) (explaining that we defer to the agency's interpretation where "the meaning of the [statutory] language is not clear on its face; however, the judiciary is the final authority on issues of statutory construction") (citation and internal quotations marks omitted).
We begin our analysis by examining whether the statutory language of § 25-446 (d)(4) is clear. See Hospitality Temps Corp. v. District of Columbia, 926 A.2d 131, 136 (D.C. 2007) ("The first step in construing a statute is to read the language of the statute and construe its words according to their ordinary sense and plain meaning.") (citation and internal quotation marks omitted); Bates v. District of Columbia Bd. of Elections & Ethics, 625 A.2d 891, 893 (D.C. 1993) (explaining that prior to deferring to an agency's interpretation of a statute, we must first determine whether the meaning of the statute is clear, because if the language is clear, no deference is due to the agency's interpretation); James Parreco & Son v. District of Columbia Rental Hous. Comm'n, 567 A.2d 43, 45 (D.C. 1989) ("In interpreting a statute, we are mindful of the maxim that we must look first to its language; if the words are clear and unambiguous, we must give effect to its plain meaning."). The Board asserts that § 25-446 (d)(4) requires the Board to make only one finding in order to approve a termination of a voluntary agreement; however, the statutory provision at issue states: (4) The Board may approve a request by fewer than all parties to amend or terminate a voluntary agreement for good cause shown if it makes each of the following findings based upon sworn evidence:
(A)(i) The applicant seeking the amendment has made a diligent effort to locate all other parties to ...