On Petition for Review of an Order of the District of Columbia Alcoholic Beverage Control Board (09-251-110, 09-251-210 & 09-251-5)
The opinion of the court was delivered by: Washington, Chief Judge:
Before WASHINGTON, Chief Judge, GLICKMAN, Associate Judge, and REID, Senior Judge.
This appeal challenges the imposition of a fine and suspension of a liquorlicense held by petitioner, 1900 M Restaurant Associates, Inc., for the establishment Rumors Restaurant ("Rumors"). Petitioner argues that the findings underlying the decision of the District of Columbia Alcoholic Beverage Control Board ("ABC Board" or "Board") to impose the fine and suspend its license were not supported by substantial evidence.*fn1 We agree and therefore reverse.
Petitioner is the holder of a nightclub Class C/N license. See D.C. Code § 25-113 (d)(2)(A) (2001). Based on three incidents in 2009 at petitioner‟s establishment, Rumors, petitioner received notice of eleven violations of the District of Columbia‟s liquor licensing laws. The ABC Board held a hearing, at which the District introduced evidence and witness testimony relating to each of the incidents. A summary of the three incidents follows.
The government presented evidence that on January 4, 2009, Ryan Saltzman and his brother Adam were patrons at Rumors. The two were dancing on the crowded dance floor at around 2:30 a.m. when Evan Polley, a Rumors security employee, who was sitting near the brothers made a "shooing" gesture towards them. The brothers did not know what the gesture meant or who Polley was, as Polley wore nothing identifying himself as an employee of Rumors or as a member of the security staff. Ryan testified that he saw a woman standing next to Polley, and that Polley then told the brothers to move without explaining why or identifying himself. The brothers again ignored Polley because they thought he was drunk and they did not realize that he was a Rumors security employee.
Polley repeated himself, and after a third time, began pushing Ryan and grabbed his shoulders and upper arms. Ryan attempted to get Polley off of him, and Polley responded by pulling Ryan‟s jacket over his head. Ryan felt himself being grabbed and pushed outside of the restaurant. Ryan tried to re-enter to help his brother, but the security guard posted at the door would not let him inside. A minute or two later, Adam came outside with ripped clothing and in tears. Adam had apparently tried to help his brother, but his arms were pinned behind his back by another person. Polley allegedly kneed Adam in the face and punched him in the back of the head. Adam suffered a broken or fractured nose as a result of the incident. Ryan called the police, and Polley was arrested.
Polley was subsequently charged with assault of Adam Saltzman. He was tried in Superior Court, and was found to have been acting in self-defense. Over the government‟s objection, the ABC Board considered Polley‟s trial testimony in which he explained that on the night in question, a female customer, who was a regular Rumors patron, was dancing near the brothers and suddenly moved aggressively towards them. Polley testified that he grabbed her by the shoulders, pulled her back, and told her to calm down. A minute later, she again moved aggressively towards the brothers and pushed one of them. Polley did not know why the woman was upset, and testified that he took her into the dining room and sat her down. He then went back to the brothers and told them that they had to leave, but one of the brothers responded that they did not have to do what he said. Polley testified that he identified himself as an employee of Rumors, and then grabbed the back of their jackets.
The government also presented evidence that on April 4, 2009, Daniel Blakely was a patron at Rumors, where he was joined by seven of his friends. Blakely had been at Rumors for about an hour when a fight broke out between one of his friends and another customer. Blakely took two steps towards the fight to prevent his friend from being thrown to the ground. At that moment, Blakely saw an arm extend and smash a bottle against his head. He touched his forehead and saw blood on his hand. Another customer saw that Blakely was bleeding and took him to the restroom. When Blakely returned from the restroom, he was still bleeding and had glass in his hair. At this point, Blakely‟s friends had been ejected from the restaurant. Blakely saw an employee cleaning glass (what appeared to be a broken beer bottle) from the floor. He asked to speak to the manager twice before Paul Kolokousis appeared and asked to see the surveillance video in order to identify who had hit him. Kolokousis told Blakely that the footage could not be viewed that night because it was stored off-site.
The Alcoholic Beverage Regulation Administration ("ABRA") received a complaint filed by Blakely‟s father regarding the alleged assault as well as a police report of the April 4 incident from the D.C. Metropolitan Police Department ("MPD"). ABRA Investigator Erin Mathieson visited Rumors on April 15, 2009, to conduct a regulatory inspection. Mathieson interviewed Mike McGrabbin, a member of the Rumors security staff. Mathieson asked McGrabbin whether he was familiar with Rumors‟ security guidelines, and showed him a copy of Rumors‟ security plan. McGrabbin indicated that he had never before seen the security plan. Mathieson also interviewed Anthony Palmer, an ABC manager at Rumors, who told Mathieson that the manager, Kolokousis, would not be available until April 17. Mathieson left her business card with Palmer and told him that she needed the security video footage from April 3 to April 4, 2009. On the card, she wrote that she needed the footage by a certain date.
Mathieson returned to Rumors on April 17 because she had not been contacted by Kolokousis. Kolokousis recalled the April 4 incident, and told Mathieson that Blakely head butted another person when he was trying to help his friend. Kolokousis also told Mathieson that he had viewed the security video footage from April 4, and could not see anything from the incident on the tapes. Kolokousis told Mathieson that Palmer had failed to relay the investigator‟s message regarding the footage. Mathieson gave Kolokousis her business card and asked that he provide her with the names and telephone numbers of all security staff involved in the April 4 incident.
On April 24, Mathieson telephoned Kolokousis, as she had not yet heard back from him. Kolokousis said he would provide Mathieson with a DVD of the footage and the requested contact information by April 28. Mathieson did not hear from Kolokousis, so on April 28, she called him again. Kolokousis then informed Mathieson that he could not furnish the requested video footage because the videotapes re-record every seven days, ...