D. T. Corp. v. District of Columbia Alcoholic Beverage Control Board

District of Columbia Court of Appeals

D. T. Corp. v. District of Columbia Alcoholic Beverage Control Board

407 A.2d 707, 1979 D.C. App. LEXIS 475

CourtDistrict of Columbia Court of Appeals

DecidedNovember 6, 1979

Docket12681

StatusPublished

Cited by7 cases

This text of 407 A.2d 707 (D. T. Corp. v. District of Columbia Alcoholic Beverage Control Board) is published on Counsel Stack Legal Research, covering District of Columbia Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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D. T. Corp. v. District of Columbia Alcoholic Beverage Control Board, 407 A.2d 707, 1979 D.C. App. LEXIS 475 (D.C. 1979).

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Opinions

MACK, Associate Judge:

This cause presents for our consideration an order of the Alcoholic Beverage Control Board of the District of Columbia, denying the transfer of a Class C retailer’s license. Petitioners argue that the Board erroneously 1) ruled the transfer of a liquor license from one corporation to another was inappropriate on the grounds that entertainment provided on the subject premises violated the law; 2) prohibited the transfer of a license in existence for six years to another corporation at the same location when the neighbors had never previously complained of the operation of the business; and 3) denied the transfer of the license because of the licensee’s policy prohibiting the admission of minors to the premises. [708]*708For the reasons stated below, we remand the case for further Board action.

I

D. T. Corporation is owned solely by Deh-nad Taiedi, who is also its president. Mr. Taiedi filed an application with the Board requesting approval of the transfer of a retailer’s license, Class C, held by 4934, Inc.¹ for a restaurant at 4934 Wisconsin Avenue, N.W., to petitioner for a restaurant at the same address.² The Board held a public hearing on the protested application in accordance with Section 14(b) of the Alcoholic Beverage Control Act, D.C.Code 1973, § 25-115(b).

Petitioners seek this transfer to license a restaurant to be called the Godfather (also the trade name of the existing restaurant at that location). The new licensee would operate essentially the same type of business as the present licensee. The seating capacity would be 90-92, the hours of operation from 11:00 a. m. to 2:00 a. m. during the week, and from 11:00 a. m. to 3:00 a. m. on Friday and Saturday. Hot food such as hamburgers and pizzas would be served until 10:00 p. m., after which only cold sandwiches would be available. The entertainment would consist of a jukebox and nude go-go dancers. No provisions would be made for parking; patrons would have to use street meters.

Members of the community and representatives of community groups testified at the hearing in opposition to the granting of the application. They testified that the noise created by departing patrons of the present licensee disturbed the residents of the area, consisting largely of single-family dwellings with some family-oriented commercial establishments. These witnesses indicated that the departing patrons were drunk and unruly, that they shouted obscenities as they walked to their cars, threw bottles and litter along the street, and vomited and urinated in the yards and the doorways to other commercial establishments. The Board also heard general complaints of crimes and arrests in the area attributable to the presence of the original Godfather. According to the testimony, these problems stemmed in large measure from the inadequate parking which required patrons to travel through the neighborhood on their way to cars, a situation which would continue with the new Godfather. In the view of the neighbors, petitioner’s operation of the establishment in the same manner would mean a continuation of these disturbances.

On September 19, 1977, the Board issued its findings of fact and conclusions of law, denying the application on the grounds that the premises did not qualify as “appropriate” for the transfer of the retailer’s license Class C. Following a denial of the petition for reconsideration by the Board, petitioners sought review.

II

A. Petitioners’ first and second arguments are not persuasive. It is true that the Godfather could not suffer legal penalty for featuring exotic dancing.. 4934, Inc. v. Washington, D.C.App., 375 A.2d 20 (1977). However, despite petitioners’ contention to the contrary, the Board in the instant case did not make a finding that the entertainment provided by the licensee was illegal, nor was the license denial based on the nature of the entertainment. Petitioners’ second argument cites no authority for the assertion that neighborhood residents might be estopped from protesting reis-suance or transfer of a license by their prior silence.

B. In its decision denying petitioners’ application, the Board found that the Godfather refused admittance to minors, and concluded that such a policy was contrary [709]*709to § 47-2902(a) of the equal services laws,³ D.C.Code 1973, § 25-103(n)⁴ and -111(g)⁵ which define a “bona fide restaurant,” and 34 DCRR 15-l(a)⁶ of the District of Columbia Human Rights Law barring discrimination based on age. It was the Board’s opinion that the use of the words “persons” in the equal services law, and “public” in the statutes defining restaurants, coupled with the Human Rights Law gives minors a civil right to frequent places like the Godfather for the purpose of obtaining meals. Petitioners challenge this construction.

We agree the Board erred in concluding that § 47-2902(a) mandates nondiscriminatory treatment based on age. This section of the equal services laws was part of an 1870 Act of the City of Washington, directed solely at remedying racial discrimination in the District of Columbia. See Tynes v. Gogos, D.C.Mun.App., 144 A.2d 412, 414-15 n. 4 (1958); see generally District of Columbia v. John R. Thompson Co., 346 U.S. 100, 73 S.Ct. 1007, 97 L.Ed. 1480 (1953). It cannot be construed as requiring equal services to minors.

Moreover, the Board’s reading of the Human Rights Law, 34 DCRR 15.1, as prohibiting age discrimination in establishments such as the Godfather is also incorrect. That section while prohibiting age discrimination in public accommodations, defines “age” as “18 years of age or older.” 34 DCRR 3.1. Therefore, this section would not apply to limitations on minors’ access to the Godfather.

Absent these two foundations for the Board’s decision, there is no independent basis for its interpretation of the phrase “held out to the public” in § 25-103(n) as prohibiting the exclusion of minors. To the contrary, another section of the same title regulating alcoholic beverages, § 25-121,⁷ specifically places limitations, through the licensing process, on minors’ access to alcoholic beverages. The sale and consumption of alcoholic beverages are highly regulated areas of commercial activity. Public concern with alcohol abuse by teenagers is reflected in our drinking age laws. To undermine these efforts by requiring admission of minors to establishments serving meals as well as alcohol would fly in the face of these policies.

We conclude that the Board’s finding, that the Godfather’s policy of refusing admission to minors is contrary to law, was [710]*710not in accordance with a reasonable construction of the law. D.C.Code 1978 Supp., § 1 — 1510(3)(A).

Ill

Because of our conclusion regarding the minors issue, we are compelled to remand the instant case. In reaching this decision, we do not imply that the Board’s determination as to the inappropriateness of the transfer of the Godfather’s Class C license must necessarily fail. It is unclear whether the same determination would have been reached by the Board absent its findings relative to the barring of minors.

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MACK, Associate Judge:

This cause presents for our consideration an order of the Alcoholic Beverage Control Board of the District of Columbia, denying the transfer of a Class C retailer’s license. Petitioners argue that the Board erroneously 1) ruled the transfer of a liquor license from one corporation to another was inappropriate on the grounds that entertainment provided on the subject premises violated the law; 2) prohibited the transfer of a license in existence for six years to another corporation at the same location when the neighbors had never previously complained of the operation of the business; and 3) denied the transfer of the license because of the licensee’s policy prohibiting the admission of minors to the premises. [708]*708For the reasons stated below, we remand the case for further Board action.

I

D. T. Corporation is owned solely by Deh-nad Taiedi, who is also its president. Mr. Taiedi filed an application with the Board requesting approval of the transfer of a retailer’s license, Class C, held by 4934, Inc.¹ for a restaurant at 4934 Wisconsin Avenue, N.W., to petitioner for a restaurant at the same address.² The Board held a public hearing on the protested application in accordance with Section 14(b) of the Alcoholic Beverage Control Act, D.C.Code 1973, § 25-115(b).

Petitioners seek this transfer to license a restaurant to be called the Godfather (also the trade name of the existing restaurant at that location). The new licensee would operate essentially the same type of business as the present licensee. The seating capacity would be 90-92, the hours of operation from 11:00 a. m. to 2:00 a. m. during the week, and from 11:00 a. m. to 3:00 a. m. on Friday and Saturday. Hot food such as hamburgers and pizzas would be served until 10:00 p. m., after which only cold sandwiches would be available. The entertainment would consist of a jukebox and nude go-go dancers. No provisions would be made for parking; patrons would have to use street meters.

Members of the community and representatives of community groups testified at the hearing in opposition to the granting of the application. They testified that the noise created by departing patrons of the present licensee disturbed the residents of the area, consisting largely of single-family dwellings with some family-oriented commercial establishments. These witnesses indicated that the departing patrons were drunk and unruly, that they shouted obscenities as they walked to their cars, threw bottles and litter along the street, and vomited and urinated in the yards and the doorways to other commercial establishments. The Board also heard general complaints of crimes and arrests in the area attributable to the presence of the original Godfather. According to the testimony, these problems stemmed in large measure from the inadequate parking which required patrons to travel through the neighborhood on their way to cars, a situation which would continue with the new Godfather. In the view of the neighbors, petitioner’s operation of the establishment in the same manner would mean a continuation of these disturbances.

On September 19, 1977, the Board issued its findings of fact and conclusions of law, denying the application on the grounds that the premises did not qualify as “appropriate” for the transfer of the retailer’s license Class C. Following a denial of the petition for reconsideration by the Board, petitioners sought review.

II

A. Petitioners’ first and second arguments are not persuasive. It is true that the Godfather could not suffer legal penalty for featuring exotic dancing.. 4934, Inc. v. Washington, D.C.App., 375 A.2d 20 (1977). However, despite petitioners’ contention to the contrary, the Board in the instant case did not make a finding that the entertainment provided by the licensee was illegal, nor was the license denial based on the nature of the entertainment. Petitioners’ second argument cites no authority for the assertion that neighborhood residents might be estopped from protesting reis-suance or transfer of a license by their prior silence.

B. In its decision denying petitioners’ application, the Board found that the Godfather refused admittance to minors, and concluded that such a policy was contrary [709]*709to § 47-2902(a) of the equal services laws,³ D.C.Code 1973, § 25-103(n)⁴ and -111(g)⁵ which define a “bona fide restaurant,” and 34 DCRR 15-l(a)⁶ of the District of Columbia Human Rights Law barring discrimination based on age. It was the Board’s opinion that the use of the words “persons” in the equal services law, and “public” in the statutes defining restaurants, coupled with the Human Rights Law gives minors a civil right to frequent places like the Godfather for the purpose of obtaining meals. Petitioners challenge this construction.

We agree the Board erred in concluding that § 47-2902(a) mandates nondiscriminatory treatment based on age. This section of the equal services laws was part of an 1870 Act of the City of Washington, directed solely at remedying racial discrimination in the District of Columbia. See Tynes v. Gogos, D.C.Mun.App., 144 A.2d 412, 414-15 n. 4 (1958); see generally District of Columbia v. John R. Thompson Co., 346 U.S. 100, 73 S.Ct. 1007, 97 L.Ed. 1480 (1953). It cannot be construed as requiring equal services to minors.

Moreover, the Board’s reading of the Human Rights Law, 34 DCRR 15.1, as prohibiting age discrimination in establishments such as the Godfather is also incorrect. That section while prohibiting age discrimination in public accommodations, defines “age” as “18 years of age or older.” 34 DCRR 3.1. Therefore, this section would not apply to limitations on minors’ access to the Godfather.

Absent these two foundations for the Board’s decision, there is no independent basis for its interpretation of the phrase “held out to the public” in § 25-103(n) as prohibiting the exclusion of minors. To the contrary, another section of the same title regulating alcoholic beverages, § 25-121,⁷ specifically places limitations, through the licensing process, on minors’ access to alcoholic beverages. The sale and consumption of alcoholic beverages are highly regulated areas of commercial activity. Public concern with alcohol abuse by teenagers is reflected in our drinking age laws. To undermine these efforts by requiring admission of minors to establishments serving meals as well as alcohol would fly in the face of these policies.

We conclude that the Board’s finding, that the Godfather’s policy of refusing admission to minors is contrary to law, was [710]*710not in accordance with a reasonable construction of the law. D.C.Code 1978 Supp., § 1 — 1510(3)(A).

Ill

Because of our conclusion regarding the minors issue, we are compelled to remand the instant case. In reaching this decision, we do not imply that the Board’s determination as to the inappropriateness of the transfer of the Godfather’s Class C license must necessarily fail. It is unclear whether the same determination would have been reached by the Board absent its findings relative to the barring of minors. Since an initial determination of the appropriateness of a liquor license transfer is committed to the expert discretion of the Board, we are not free to state whether the Board’s determination in the instant case would have been different had the erroneous findings not been made. Sherman v. Commission on Licensure to Practice the Healing Art, D.C.App., 407 A.2d 595 (1979). See SEC v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943); Jameson’s Liquors, Inc. v. District of Columbia Alcoholic Beverage Control Board, D.C.App., 384 A.2d 412 (1978); Dietrich v. Tarleton, 154 U.S.App.D.C. 47, 473 F.2d 177 (1972).

We therefore remand this case so that the Board may determine whether its decision regarding the inappropriateness of the transfer of the Godfather’s liquor license ought to stand, absent consideration of the minors issue.

So ordered.

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