Submitted October 18, 2018
On
Petition for Review of an Order of the District of Columbia
Alcoholic Beverage Control Board 16-251-00125
Paul
J. Kiernan and Kristina A. Crooks were on the brief for
petitioner.
Karl
A. Racine, Attorney General for the District of Columbia,
Loren L. AliKhan, Solicitor General, Stacy L. Anderson,
Acting Deputy Solicitor General at the time the brief was
filed, and Richard S. Love, Senior Assistant Attorney
General, were on the brief for respondent.
Before
Thompson and McLeese, Associate Judges, and Nebeker, Senior
Judge.
Thompson, Associate Judge
Petitioner
1215 CT, LLC t/a Rosebar Lounge ("Rosebar") seeks
review of an April 26, 2017, decision and order of the
District of Columbia Alcoholic Beverage Control Board
("the Board") that imposed a $4, 000 fine and a
seven-day suspension of Rosebar's liquor license for a
violation of D.C. Code § 25-823(a)(6) (2012 Repl. And
2019 Supp.).[1] Specifically, the Board found that on May
1, 2016, Rosebar "violated the terms of its security
plan related to the use of force . . . ."
Rosebar
acknowledges for purposes of its petition that the
Board's factual findings are adequately supported by the
record, but argues that the Board incorrectly applied §
25-823 when it found that a single violation of Rosebar's
security plan (the "Security Plan") on file with
the Alcoholic Beverage Regulation Administration
("ABRA") constituted a violation of §
25-823(a)(6). For the reasons that follow, we affirm the
Board's decision.
I.
Rosebar
operates at 1215 Connecticut Avenue, N.W., and holds a Class
CT License. On August 8, 2013, it submitted to ABRA its
Security Plan, which describes strategies to be used to deal
with uncooperative patrons and altercations that may arise
between patrons. In pertinent part, Rosebar's Security
Plan provides that:
Staff cannot legally use force against a person unless in
self-defense or defense of others from imminent harm . . . .
At our venue staff may not use restraints or control holds; .
. . tackling; . . . piling on top; . . . [or] pain compliance
holds.
. . .
Escorting a patron out of a venue involves the use of
professional verbal commands and a polite explanation of why
they are being asked to leave[.]
The staff member should warn the guest that they must leave
the premises immediately or be subject to arrest by the
police. If the ejected patron attacks anyone, reasonable
force can be used in self-defense.
. . .
There may come times when deviation may be necessary to
ensure the safety of our patrons and staff. Your supervisors
will inform you of such cases if necessary.
The
Board found that during an incident on May 1, 2016 (the
"May 2016 incident"), Rosebar violated the
provisions of its Security Plan related to the use of force
and the ejection of patrons. The incident, which was captured
on video footage reviewed by the Board, involved patron
Zunnobia Hakir and Rosebar security guard Bobby Noupa. The
Board found that the first use of force occurred after Mr.
Noupa asked Ms. Hakir to leave a section of the establishment
in the wake of complaints that she had caused trouble at a
table. After Ms. Hakir leaned down to retrieve an item from
her anklet pouch and then stood back up, Mr. Noupa pushed Ms.
Hakir away from him. Mr. Noupa testified before the Board
that he did not know what Ms. Hakir had in her hand and
believed that she was attacking him, and in response, he
"turned her around and decided to escort her out of the
establishment." The Board found that Mr. Noupa did that
by "wrap[ping] up [Ms. Hakir's] arms from behind by
sticking his arms under her armpits" and then
"walk[ed] her out of the establishment while maintaining
the hold from behind." The Board found that Ms. Hakir
"did not have a weapon in her hands" and concluded
that Mr. Noupa could not reasonably have feared for his
safety and that his use of force was unjustified.
The
Board found that the second use of force occurred when Mr.
Noupa, with Ms. Hakir in tow, approached the staircase
leading to the establishment's main entrance. Mr. Noupa
proceeded to pull Ms. Hakir down the stairs by her arms, so
that she either was dragged or fell to the landing in the
middle of the divided staircase. The Board found that Mr.
Noupa's conduct was "disproportionate, excessive,
and unreasonable," could ...