Argued: November 13, 2014.
On Petition for Review of an Order of the District of Columbia Alcoholic Beverage Control Board. (CMP00321-11).
Richard J. Bianco for petitioner.
Jason Lederstein, Assistant Attorney General, with whom Irvin B. Nathan, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and Loren L. Alikhan, Deputy Solicitor General, were on the brief, for respondent.
Before THOMPSON and MCLEESE, Associate Judges, and NEWMAN, Senior Judge. Opinion for the court by Associate Judge THOMPSON. Opinion by Associate Judge MCLEESE, concurring in part and dissenting in part, at page 19.
Thompson, Associate Judge :
Petitioner Asefu Alemayehu appeals from the February 27, 2013, decision of the Alcoholic Beverage Control Board revoking her Retailer's Class CT license to serve alcoholic beverages, and from the Board's April 17, 2013, order denying Petitioner's motion for reconsideration. Petitioner contends that the Board's decision should be vacated (1) because the Board's decision-making was inappropriately tainted after Board members heard her offer in compromise and (2) after they learned that she also faced a pending investigation in another matter; (3) because she lacked the English proficiency required to understand the Board proceeding and to make a knowing waiver of her rights (the " language issue" ); and (4) because the penalty of revocation was not commensurate with the nature of the charged offense. For the
reasons discussed below, we reverse and remand.
According to the Notice of Status and Show Cause Hearing issued to Petitioner on May 9, 2012, an Alcoholic Beverage Regulation Administration investigator visited Petitioner's restaurant at approximately 3:49 am on Tuesday, July 5, 2011. From outside, the investigator watched someone lock the restaurant's front door and observed several individuals inside holding beer bottles. Upon entering the restaurant, the investigator witnessed approximately twenty individuals consuming alcoholic beverages. The investigator approached Petitioner, the owner of the restaurant, who told him that " she was unaware of the time." The relevant District of Columbia statute required that, on the weekday in question, alcohol consumption on the premises stop at 2:00 am. D.C. Code § 25-723 (b) (2001); see also 23 DCMR § 705.9.
At the first Show Cause Hearing, held on December 12, 2012, Petitioner was represented by Wendell Robinson. Robinson told the Board that he had just realized that Petitioner did not speak English well enough to understand his advice or explanations. He said that Petitioner had " indicated she could understand [him]" during their meetings, and he had taken her at her word, even though she sometimes displayed a " look of bewilderment." However, the day before the hearing, Robinson's associate met with Petitioner and, with the aid of an interpreter, discovered that Petitioner was " [un]aware that she could lose her license and not be able to reapply for five years." This result indicated to Robinson that Petitioner had overstated her ability to understand their previous conversations. In light of his need to properly prepare and advise his client again, now with the assistance of an interpreter, Robinson requested a continuance. At no point during this hearing did Robinson mention the District of Columbia Interpreter Act, D.C. Code § 2-1902 (c) (2001). The Board granted the continuance request.
At the second Show Cause Hearing, held on January 9, 2013, Petitioner was represented by Andrew Kline. Kline and Assistant Attorney General Fernando Rivero presented to the Board an offer in compromise, under which Petitioner would pay a $3,000 fine, be subject to a 10-day suspension of her license, and submit an application for transfer of her license within 60 days. Kline explained that allowing Petitioner to " move on from this business" through a license transfer was " a very important component of the offer, given the investigative history"  and " other factors,"
including the fact that " [t]here is another investigative matter in the pipeline[.]" Rivero also referred to the " pipeline" matter, explaining that the pending " case concern[ed] an incident that took place in July of ." At this point, a Board member interjected, cautioning his colleagues not to consider the existence of pending cases when ruling on the offer in compromise, as " the fact that there is something in the pipeline is irrelevant to this case."
Before ruling on the offer in compromise, Board member Jones, sua sponte, asked Kline whether his client needed an interpreter, recalling that the previous Show Cause hearing was continued because " there was a concern about a translator . . . being necessary or required[,]" as " it wasn't clear that the licensee clearly understood all the nature of the discussions that were being had between her and her counsel[,]" and Petitioner possibly " wasn't in the position to clearly understand all the discussions that were being had by us as a Board[.]" The Board member sought to " establish on the record that no translator is necessary[.]" The Board Chair asked Kline to address the issue. Kline responded:
The only way that I can address that is I have spent a great deal of time with Ms. Alemayehu. I'm satisfied that she understands the terms of the deal. I'm happy to have her answer any questions that the Board may have, so that the Board might be satisfied. . . . [I]n this case, given the time that I have spent with her in our review of ...