North Lincoln Park Neighborhood Ass'n v. District of Columbia Alcoholic Beverage Control Board

WAGNER, Chief Judge,

concurring in part and dissenting in part:

In my opinion, the decision of the Alcoholic Beverage Control Board (Board), that Mr. and Mrs. Oh are entitled to have the license for their store renewed, is supported by substantial evidence in the record and in accordance with applicable law; therefore, we are bound to uphold it. See Coumaris v. District of Columbia Alcoholic Beverage Control Bd., 660 A.2d 896, 899 (D.C.1996) (citing D.C.Code § l-1510(a)(3)(E) (1992)) (further citations omitted). In reaching its decision, the Board, in compliance with the remand order of this court,1 fully considered and weighed the applicants’ violations of the voluntary agreement, along with all the other factors listed in D.C.Code § 25-115(b) and (g)-2

The Board found that the Ohs’ store did not have a negative impact on the neighborhood. In making its determination, the Board relied upon the investigator’s testimony concerning his observations made during *877eighteen visits to the area between February and June 1992. In its written findings, the Board recounted the investigator’s testimony that: (1) no one congregated outside the store for more than 5-12 minutes where they talked peacefully and did not consume alcoholic beverages;3 (2) he observed no drinking in the parking lot; (3) there was little litter around the store because someone cleaned the area every morning; (4) people who congregated on a wall across the street from the store or on nearby porches were neighborhood residents or their acquaintances, and were not rowdy or intimidating to others, although they sometimes drank from containers in brown bags; and (5) police incident reports between June 1, 1991 and May 31, 1992, reflected only two larcenies and one violation “not covered under the criminal code” for the establishment. The Board also considered that: (1) the applicant testified that he takes steps to ensure that inebriated persons are not served; (2) that an eighteen-year resident thought the store was “nice” and would continue to patronize it; (3) that the principal at the nearby school could recall no complaints of harassment or difficulty of any child or parent related to the store; (4) that the minister from a nearby church related that members of her congregation had no problems related to the store; (5) that complaints from three of the witnesses who recounted respectively incidents of public urination, harassment, and lewd conduct, were not shown to have been associated with patrons of the Ohs’ establishment. The Board also took into consideration other evidence that there were incidents of public drinking and urination in the area of the store. However, in summary, the Board concluded on this issue:

that while there have been incidents of public drinking and urination, the behavior is not substantial enough to deny the renewal of Applicant’s license. The establishment has existed in the neighborhood for over 50 years and has the support of long time residents. The Board finds that Applicant’s establishment does not adversely affect the peace, order and quiet of the neighborhood.

There is substantial evidence to support the Board’s finding. The mere existence of evidence to the contrary, even if substantial, “does not allow this court to substitute its judgment for that of the Board.” Spevak v. District of Columbia Alcoholic Beverage Control Bd., 407 A.2d 549, 554 (D.C.1979) (citing Schiffmann v. District of Columbia Alcoholic Beverage Control Bd., 302 A.2d 235, 238 (D.C.1973)).

The protesters also challenged renewal of the Ohs’ license on the grounds that “the Applicant’s establishment detracts from the cultural and economic vitality of the neighborhood” and the Applicant violated the voluntary agreement, the issue for which the case was remanded after the initial appeal to this court. With respect to the first remaining issue, the Board concluded that the store did not detract from the cultural and economic vitality of the neighborhood. In reaching this conclusion, the Board considered, among other things, expert testimony that: (1) real property values had increased in the neighborhood; (2) the store was convenient for senior and retired citizens living in the surrounding area; (3) the owner made contributions for the past six years to local churches and others in the community; and (4) declining market values in the area were due to the recession and not to the operation of the store. The Board also considered the Mr. Oh’s violations of the Agreement and that he admitted his wrong and was sanctioned for it.4 However, it deemed the infractions insufficient to withhold license renewal, considering the other pertinent factors.

The foregoing findings are supported by substantial evidence. They address the issues raised by petitioners, including the owners’ violation of the voluntary agreement. While the Board must give great weight to the concerns raised by the Association, “it is *878not obliged to follow [the Association’s] recommendations or adopt its views.”5 Upper Georgia Ave. Planning Comm. v. Alcoholic Beverage Control Bd., 500 A.2d 987, 993 (D.C.1985) (citations omitted). The Board made findings on all material contested issues as required by the statute. “So long as the Board makes ‘explicit reference to each [protestant’s] issue and concern as such, as well as specific findings and conclusions with respect to each,’ it meets the requirements of [D.C.Code § ] 1 — 261(d); it is not obliged to follow the [protestant’s] recommendations or adopt its views.” Id. (citations omitted).

For the foregoing reasons, while I join in Part II of the opinion,61 respectfully dissent from the remainder of the opinion.

. See North Lincoln Park Neighborhood Ass’n v. Alcoholic Beverage Control Bd., 666 A.2d 63, 67 (D.C. 1995).

. The cited sections of the Code set forth factors an applicant must demonstrate to qualify for issuance, transfer, or renewal of a license.

. While the investigator once saw someone leave the store drinking from a container in a brown bag, it was not determined whether alcohol was in the container.

. In explanation of its conclusion that Mr. Oh did not understand the agreement, the Board also noted that he did not appreciate fully its terms and its resulting economic impact and that he violated it in an attempt to avoid economic disaster.

. See D.C.Code § l-261(d) (1992 Repl).

. I agree fully with the discussion and disposition reached with respect to the Board’s power to determine the appropriate penalty for breach of the terms of the voluntary settlement agreement (incorporated as conditions of the license).