Chase v. District of Columbia Alcoholic Beverage Control Board

ON PETITION FOR REHEARING

In Chase v. District of Columbia Alcoholic Beverage Control Bd., No. 94-AA-184 (D.C. July 20, 1995) (Chase I), this court held that the Board erred in granting intervenor H.H. Leonards Associates (HHLA) a Class CX retailer’s license. We concluded that HHLA was not entitled to the license because it had not been incorporated for three months immediately prior to the date of its application, and that it therefore had not been a club for the period required by D.C.Code § 25-lll(a)(7)(G)(ii) (1991).1 We reversed the Board’s decision and remanded the case to the Board with directions to revoke the license previously issued and to deny HHLA’s application.

HHLA has filed a timely petition for rehearing in which it does not contest the court’s construction of the statutory three-month requirement, but argues that the relief which the court ordered the Board to grant was overbroad. HHLA points out that the moratorium on issuance of new Class CX licenses in the geographic area where HHLA’s purported club was located, see Chase I, at 1269 n. 6, did not become effective until July 22, 1994, seven months after the Board’s order in this case. Accordingly, says HHLA, if the Board had construed the statute correctly, then HHLA could have filed a timely application which would not have been barred by the moratorium. HHLA claims that it relied, to its detriment, on the Board’s ruling that it could apply for a license without having been incorporated for 90 days at the time of its application.

The gravamen of HHLA’s position is that it was “lulled” by the Board’s erroneous construction of the statute into not filing a new, valid and timely application at some time three months after it had been incorporated but before the moratorium became effective. HHLA points out that, by the time this court set aside the Board’s ruling and eliminated the basis for HHLA’s reliance on the Board, it was too late to file the application. Accordingly, says HHLA, equitable considerations should preclude the relief ordered by the court.

The “lulling’ or “unique circumstances” doctrine was “designed to create a very narrow equitable exception to rigorous filing requirements.” See, e.g., Frain v. District of Columbia, 572 A.2d 447, 451 (D.C.1990). In order to invoke the doctrine, HHLA must show that its reliance on the erroneous action of the Board was reasonable. Id.; see also Ouriaghli v. Moore, 621 A.2d 392, 395 (D.C.1993); cf. Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215, 216-17, 83 S.Ct. 283, 284-85, 9 L.Ed.2d 261 (1962) (per curiam).

In the present case, as we noted in Chase I, HHLA’s claim that it had been a *1270club for three months at the time it filed its application could not be reconciled with the unambiguous statutory requirement that a club be a corporation. See D.C.Code § 25-103(7) (1991). We do not believe that HHLA could reasonably rely on a notion that an unambiguous statute does not mean what it says. Moreover, even if, solely for the sake of argument, we were to indulge the dubious assumption that HHLA and its counsel were unaware of the dispositive statute on January 13, 1993, when the application for a license was filed, and that such lack of awareness was sufficiently reasonable to warrant invocation of the lulling doctrine, all parties concerned were surely made aware of the problem in June 1993, when petitioners invoked the statute and asked the Board to dismiss HHLA’s application. Petitioners’ motion put HHLA on notice that its unorthodox interpretation of the statutory language was now being challenged, and they were surely apprised of the possibility that this interpretation might not withstand rigorous scrutiny.

Upon the filing of petitioners’ motion, HHLA had a choice. It could elect to file a new application for a license, which would be in compliance with the statute, for at the time petitioners filed their motion, HHLA had been incorporated for half a year, a substantially longer period than the statute required. Alternatively, HHLA could rely on its original application, which had been filed less than three-months after HHLA’s incorporation, and gamble on the possibility that the non-literal construction would prevail.

HHLA chose the second, and plainly riskier, course. It then persuaded the Board to adopt an interpretation of the statute which, as we held in Chase I, was contrary to its unambiguous language. On rehearing, HHLA does not assert that the statute is ambiguous or that this court has misconstrued it. We conclude that HHLA has failed to demonstrate that its reliance on the Board’s decision was reasonable.

Moreover, the “unique circumstance” doctrine may be successfully invoked only upon a showing of affirmative statements or actions on the part of the tribunal which have misled the party claiming to have been lulled. Frain, supra, 572 A.2d at 451-52. A ruling in HHLA’s case, made at HHLA’s behest and contrary to the statutory language, does not constitute the kind of misleading affirmative representation on which HHLA may successfully claim to have reasonably relied. See id at 451 (“we question whether the court’s mere acquiescence in a request by the movant would be sufficient”).2

HHLA contends, in the alternative, that the court should apply its interpretation of the statute “on a prospective rather than a retroactive basis.” It relies on French v. District of Columbia Bd. of Zoning Adjustment, 658 A.2d 1023 (D.C.1995), and Mendes v. Johnson, 389 A.2d 781 (D.C.1978) (en banc). We stated in Mendes and reiterated in French that

[w]here retroactive application of a new rule would result in substantial disruption of settled transactions and/or injustice to a party because of reliance on the continued validity of the prior legal rule — especially one of long standing — courts are extremely reluctant to accord retroactive effect to overruling decisions.

Mendes, supra, 389 A.2d at 789, quoted in French, supra, 658 A.2d at 1031.

In Mendes, however, the doctrine which the en banc court overruled had been in effect for many decades, and reliance on it was both reasonable and widespread. Similarly, in French, the prevailing parties had acted in reliance upon an opinion of the Corporation Counsel which had been issued in 1977 and which had never previously been challenged in court. In the present case, on the other hand, HHLA has not shown or alleged that it relied on a long-standing legal doctrine which was suddenly or surprisingly abandoned by the court. Indeed, the only precedent cited by HHLA is the Board’s erroneous ruling in the present case. That ruling, as we have noted, was secured by HHLA itself. We do not believe that the *1271principles set forth in Mendes and French have any application to circumstances such as those presented here.3

We recognize that the result we reach may be a harsh one vis-a-vis HHLA. It might arguably have been more reasonable for Congress to require a club to have been incorporated for three months at the time it received its license, rather than at the time the club applied for one. The statute, however, does not so provide, and this court is without authority to substitute its subjective perceptions of fairness and justice for the requirements of the law. See, e.g., Ayers v. Landow, 666 A.2d 51, 57 (D.C.1995).

For the foregoing reasons, the petition for rehearing is granted. The decision in Chase I is reaffirmed.

So ordered.

. Under the applicable statute, a club must be a not-for-profit corporation. D.C.Code § 25-103(7) (1991); Chase I, supra, at 1265.

. Indeed, one might reasonably ask whether, in this case, HHLA was the lullor or the lullee. See Frain, supra, 572 A.2d at 451-52.

. England, v. Louisiana State Bd. of Med. Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964), on which HHLA also relies, does not support its position. In England, the Supreme Court declined to apply a newly-announced rule to the litigants before it when those litigants had relied on an interpretation of a prior Supreme Court decision which was supported by "respectable authorities, including the court below.” Id. at 422 & n. 14, 84 S.Ct. at 468 & n. 14.