Carlos M. RECIO, et al., Petitioners,
DISTRICT OF COLUMBIA ALCOHOLIC BEVERAGE CONTROL BOARD, Respondent.
Argued April 10, 2013.
[Copyrighted Material Omitted]
Carlos M. Recio, Washington, DC, for petitioners.
James C. McKay, Jr., Senior Assistant Attorney General, with whom Irvin B. Nathan, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and Donna M. Murasky, Deputy Solicitor General, were on the brief, for Respondent.
Before WASHINGTON, Chief Judge, McLEESE, Associate Judge, and BELSON, Senior Judge.
BELSON, Senior Judge:
Petitioners Carlos Recio, Timothy Casey, Rachel Casey, John Thompson, Kelsey Thompson, and the National Community Church, (" Petitioners" ), seek review of an order of the District of Columbia Alcoholic Beverage Control Board (" the Board" ) dismissing their protest of the application for the liquor license renewal of the 7th and L Street Market (" the Market" ). The Board determined that petitioners, who were protesting the renewal of a liquor license, had ample notice that the Board required at least five members of the protest group to appear before it at either the roll-call hearing or the status hearing in order to be granted standing, and that yet Recio appeared at both without any additional group members. On the basis of those facts the Board dismissed petitioners' protest. We reverse the Board's order, holding that the Board abused its discretion by denying at the same status hearing petitioners' written motion for clarification or waiver of the requirement that at least five protestants appear in person at the status hearing, denying petitioners' motion for time to arrange for the presence of at least five protestants at a continued hearing, and then voting to dismiss the protest. We reject, however, petitioners' argument that the Board violated the District of Columbia Administrative Procedure Act (" DCAPA" )  by consistently requiring, without having first engaged in rulemaking, that at least five individual members of a protesting group appear in person at a single hearing in order to gain standing to participate in licensure proceedings.
On September 20, 2011, the 7th and L Street Market (the Market) at 700 L Street, Southeast, applied to renew its liquor license. Notice was published at the
premises, and on November 12 and 14, 2011, Recio submitted protest letters on behalf of himself and other residents of property within the immediate neighborhood of the Market. The Board sent letters to each protestant providing notice that a roll-call hearing was scheduled for November 28, 2011, and stating: " You must appear for the Roll Call Hearing in person or provide a written statement designating a representative who must appear for the hearing on your behalf." Each of the other protestants designated Recio in writing as their named representative. At the roll call hearing, Agent Laverne Fletcher told Recio that " your group does have standing as a protestant, by the fact that you are here today and you have been designated to represent the group." However, she also stated that " [a]t the status hearing, four of the others will need to appear." Recio asked that the requirement be waived, and said that he would file a motion if he had to. Agent Fletcher responded " that won't be waived" (apparently meaning that it would not be waived at that time), but that he could " petition the Board to waive that requirement."
On December 1, 2011, petitioners received letters from the Board that a status hearing was scheduled for January 18, 2012. The letter stated that " [i]f the requisite number of individuals is not present, the Board may dismiss the protest." On January 6, 2012, petitioners filed a petition seeking waiver, styled a motion for " clarification," asking the Board to make it clear that the protestants could appear through their designated counsel and that the individual protestants were not required to appear at any hearing.
The Alcoholic Beverage Regulation Administration's (" ABRA" ) Deputy General Counsel, Thea Davis, responded to Recio via e-mail, and informed him that the motion would be heard on January 18, 2012, the same day as the status hearing. Ms. Davis also told Recio that Agent Fletcher's instruction that at least five people must appear is consistent with 23 DCMR § 1605.4 (2008), and thus four more individuals " must appear at the Status Hearing or your protest will be dismissed." Recio responded by e-mail and argued, inter alia, that the Board's position is inconsistent with the DCAPA. Ms. Davis replied that the requirement for five individuals to appear in person is within the Board's discretion " as indicated by the term ‘ may,’ " referring to the language of 23 DCMR § 1605.4. Ms. Davis stated, " [a]s a final reminder, your clients' protest may be dismissed by the Board if at least four more individuals do not appear at the Status Hearing." Recio then asked for information regarding a request for continuance of the status hearing that had been made at the mediation held on December 11, 2011, by counsel for the license renewal applicant, in which Recio concurred. Ms. Davis replied that the status hearing would not be continued.
At the status hearing, Recio argued the motion for clarification and waiver. The Board focused on Recio's e-mail exchange with Ms. Davis in which she stated that he " needed to bring the five individuals to the status hearing." The Board ruled that it was unambiguous that petitioners had notice that " four others will need to appear at the status hearing," not acknowledging Recio's argument that Ms. Davis's statements were " not the same as a Board order."
Recio moved that the status conference be rescheduled. Neil Glick, ANC Commissioner for ANC 6B-08, joined in the request for rescheduling. Commissioner Glick stated that " this is the neighbor's first protest ... he's not as experienced with [the Board's] process." The Board
voted to dismiss the protest, and did not reschedule the hearing.
In the Board's written order of February 8, 2012, dismissing the protest, it cited the letter of December 1, 2011, to Recio from Sarah Fashbaugh of the Office of Adjudication, and noted that ABRA staff " repeatedly informed [petitioners] that at least four additional members of the Protestants' group had to appear at the Status Hearing." According to the Board, " [a]s a matter of policy, the Board has consistently required Groups of Five or More Individuals to have at least five members appear before the Board [at the status hearing] under § 1605.4."  The Board rejected petitioners' argument that 23 DCMR §§ 1602.2, 1603.3 and 1706.5 (2008) apply generally to protestants and allow a person to " attend the roll call hearing ... through a designated representative."  According to the Board, these general provisions do not override 23 DCMR § 1605.4, " which was written to apply specifically to Groups of Five or More Individuals" and grants the Board the power to demand that five or more of them personally appear during at least one hearing. The Board also stated that it is not arbitrary to require the appearance ...