Chase v. District of Columbia Alcoholic Beverage Control Board

incorporation HHLA. was issued to On Jan- KING, Before SCHWELB and Associate Leonards, Inc., uary H.H. which KERN, Judges, Judge. and Senior HHLA, “trading represented itself to be as” applied to the Board for a license for a SCHWELB, Judge: Associate “club.” 22, 1993, following public On December a petitioners Ms. Menzer and the other filed hearing, Beverage the District of Columbia they submissions the Board in granted application Control Board opposed application on a number of Leonards, Inc., trading H.H. as H.H. Leon- alia, contended, grounds. They inter (HHLA), ards Associates for a Class CX application was invalid under D.C.Code retailer’s license for a “club” at “The Man- seeking 25-111 because the “club” a li- sion,” century-old four-story a townhouse lo- cense not established in time. The Street, N.W., cated at 2020 0 in a residential public hearings Board held extensive June neighborhood Washington, D.C. Petition- July, respect ap- ers, group neighbors and a condominium plication. association, owners’ have asked this court to They set aside the Board’s decision. On December the Board issued tend, alia, application inter that the license Fact, Law, “Findings Conclusions of was filed less than three months after the respect Order.” With the issue ad- existence, club came into in violation of opinion, dressed this the Board held as 111(a)(7)(G) (1991).1 D.C.Code 25— follows: agree and reverse. Act, Section lll(a)(7)(G)(ii) (1991), provides that no I. Class “CX” license shall be issued for organized August, HHLA was for as club that has not been established (3) membership immediately unincorporated non-profit ap- an as- three months 1992,petitioner plying 3(g) sociation. In or about Susan for the license. Section 25-103(7) Menzer, Act, (1991), Department attorney a Justice who defines area, because, non-profit corporation lived became concerned a club as a but does among things, parking specify length other valet aides at of time a club must incorporated prior applying for the The Mansion closed off the street to her be legislative history following home at the establish- license. The of the Act event that, days part intent ment. She also testified follow- evidences an on the events, empty glass- Congress, adopting requirement ing such she would find when garden. began investigate, in existence for at least a es in her She that clubs be although beverag- three month and learned that alcoholic Except specified, as otherwise all references in bia Code are to the 1991 edition. opinion this to Title 25 of the District of Colum corporation only to ensure that fide bona became December (and clubs, opposed approximately five weeks thus to establishments exist- months) drink, applied less than before it liquor by three to serve would corporation license. It was not a Record, retailer’s Congressional be licensed. 78 filing of 268-289, 695-698, prior appli- three months the 770-776. is, statutory definition, by cation. A club Applicant incorporated was as a non Thus, corporation. according to unam- the profit December, 1992, corporation less biguous terms of the HHLA could (3) prior than months applying three to for not have as a club been established for three However, Applicant’s the licensure. club immediately prior applying months to for the non-profit was as a established member license, 25-lll(a)(7)(G)(ii). by § required as 1990, ship organization more than two (2) years prior application for licen- contends, held, the HHLA and Board sure. The Board concludes as a matter of 1990, that a club had been existence since law Applicant’s that a le establishment is formed, membership association when was club, gitimate existing purposes greater for statutory period and that three-month the by drink, liquor than that the sale of the obviously was therefore satisfied. license, however, was established more than three applied for a retailer’s be license, of provision months to the date its cause its without such of licensure.[2] for beverages guests alcoholic to members and law, proscribed by was see D.C.Code 25- The Board ordered that a retailer’s 109, sanctions, subject and criminal to includ premises. petition be for the for issued This imprisonment, fine or review followed. 25-132; Columbia, v. District 234 Hicks 801, A.2d 802-03 are of II. opinion years during that two more beverages of alcoholic HHLA’s service 1934, Congress legislation enacted prohibited by reasonably was law cannot be provisions which repealed most of the of the part statutory as a three- considered National Prohibition Act and created a com- waiting period. month prehensive regime regulatory manu- for the facture, held, possession argues, Board sale and alcoholic bev- and the that erages according legislative history, in the District of Act to the Act’s Columbia. See 24, 1934, 319, January waiting “designed to Stat. now codi- was ensure clubs, only opposed §§ bona seq. fied 25-101 et The Act establish as D.C.Code fide only liquor explicitly existing deals under ments to sell circumstances drink, legislative obtain licensed.” The private which a club a retailer’s would be HHLA, however, history us provides license shall submitted to “[n]o floor excerpts be that has not estab- consists of from the debate issued for club been immediately pri- Representatives lished at least 3 months House of for January Floor or to Senate in 1934. debate is applying for license.” D.C.Code 25-lll(a)(7)(G)(ii). respect pro- illuminating legisla Act seldom The further intent, represents corpora- ‘club’ tive for it views vides that word means “[t]he legislators. one or of several hundred promotion tion some common ob- two for (not Director, Corp. e.g., ject including corporations organized for Bath Iron Works Compensation any Programs, ob- purpose, or business Workers’ commercial Office of ” — 692, U.S. -, -, 700, money ject profit).... of which is 25-103(7). Williams, (1993); Aldridge v. L.Ed.2d 619 sanctions, (like but their de portion the Board’s much moved for motion was 2. This decision circumstances, findings fact and conclusions the Board’s nied. Under these we are in law) pro- taken almost verbatim from the clined to accord somewhat less deference to the posed findings Moreover, by counsel for HHLA. submitted ordinarily Board's than we decision would. Cf. accepted proposed the Board 150, (D.C. Rothberg, Sacks v. 153-54 notwithstanding findings filing HHLA's fail- 1990). See also note infra. petitioners subsequently petitioners; ure to serve (3 How.) 9, 24, (1845); ordinarily legislative U.S. L.Ed. 469 no occasion resort States, Cortelyou States, App.D.C. v. United history. 284 U.S. Wilbur United (1908).3 Moreover, Twenty- 76 L.Ed. 261 S.Ct. First Amendment was still a W.L., controversial (1931); see also In re novelty, and most of the discussion which (D.C.1991). Moreover, if were dis even we HHLA has asked us to consider relates to posed significant weight to accord to floor pros prohibi- and cons of alcohol and its foregoing ex debate —and we are not —the tion. change fragmentary permit is far too us narrowly legislation more than portion appears to construe this debate which directly Nothing in unambiguous import. touch on the issue now before us words January occurred in the applicability Senate on statute limits Missouri, apparently op- Senator Clark of an waiting-period three-month to “lid club” situ ponent proposed legislation, Indeed, told the Reynolds ations. Senator viewed legislature that after the Senate of his state requiring the statute as that a club shall be law, Sunday closing enacted a numerous “lid “legitimate in existence” for this three-month clubs” were established in order to circum- period. dispensed An association which has joining vent the ban. The cost of “lid these beverages during period alcoholic the critical cents, and, according clubs” was 25 to Sena- a to do cannot meet this without license so Clark, they tor much were “saloons as as the standard. saloons which had been outlawed Sun- days, although they carry did not the same argues, correctly, that the (Jan. 1934). 17, Cong.Ree. title.” 78 776 limited, see, scope e.g., of our review is Muir Reynolds, evidently supporter Senator Beverage v. District Columbia Alcoholic proposed legislation, responded as fol- Bd., 412, (D.C.1982), Control 450 A.2d 413-14 lows: agency’s and that we must defer to the inter in legislate We have this act endeavored to pretation plainly if it of the statute is not that, against I think we have been wrong legislative or inconsistent with the successful, require in that we that a club purpose. See Coumaris v. District Co legitimate shall have been existence for Bd., Beverage lumbia Alcoholic Control 660 prior of at least 3 months to the (D.C.1995). 896, only in A.2d 899 But is “[i]t issuance[4] license; so, as a result given to cases of doubt that the construction thereof, impossible it would be for a lot of by department charged an act spring up clubs to like mushrooms over duty enforcing Bur it becomes material.” night. Marston, 91, 92, App.D.C. net v. 61 57 F.2d Id. 611, (quoting 612 United States v. 436, 437, Tanner, 661, 663, 147 U.S. 13 S.Ct. language

Where the of a statute is (1893); generally L.Ed. 321 Chevron unambiguous, give clear and we must effect U.S.A., plain Inc. v. Natural Resources meaning, J. Parreco & Son Defense Council, 842-43, 104 Comm’n, District Rental Hous. 467 U.S. S.Ct. Columbia (1984)). (D.C.1989), 2781-82, “[I]f 567 A.2d and there is 81 L.Ed.2d did; Cortelyou, agreed with those who and those In court stated: not have other; spoke might All that can be determined from the debates differ from each who reports is that had vari- and ous various members being way proper result that the views, and we are left to determine the language legislative used strue a act is from act, meaning of this as we determine the mean- act, and, occasion, by upon a resort to acts, language other from the used passed. history when it was of the times is, too, general acquiescence therein. There (quoting App.D.C. United States v. at 29 Congress in the doctrine that debates in are Ass’n, 290, 318, Freight Trans-Missouri 166 U.S. appropriate passed by of a statute sources (1897)). 41 L.Ed. (Citations omitted). body. is reason certainty impossible that it is to determine with Reynolds apparently misspoke, for the 4. Senator put upon by was an act what construction requires for three Act the club to be in existence legislative body passed by it members of resorting prior application to the months speeches mem- to the of individual speak may rather than three months before its issuance. bers thereof. Those who did not did) clear, language of the involved is olds it then the stat apparently we believed utory easily have been interpretation.” requirements would agency’s not defer to do function, judicial met. “It is not within the Bd. Bates v. District Elec Columbia statute, however, supply to rewrite the Ethics, (D.C.1993). tions & it, in it ‘more order to make omissions present Congress unambigu In the has fair’_” Road Tenants Columbia ously corpora stated must that a club be a Ass’n District Columbia Rental Hous. tion, ambiguity and we no discern Comm’n, would warrant deference Board’s cons Brandéis, for a of Justice written words truction.5 Court, Supreme unanimous may appear The result this case some- evidently [t]he statute was drawn harsh. order granting what The Board’s plain unambigu- language care. Its is application for a retailer’s ous. not a construc- [HHLA] What asks is was issued December almost but, effect, enlarge- tion of a year filed. If after court, so that what was ment of lll(a)(7)(G)(ii) required only that inadvertence, the club be omitted, presumably months scope. supply existence least three To be included within (as Reyn- judicial function. the issuance of the license Senator omissions transcends the reasons, petition grounded by delivering person a There are cir- to the Board in other added). subjecting (Emphasis response to particular proposal.” cumstances of for In this exacting scrutiny. Kluger’s argument by the Board’s more that he the decision to was misled First, noted, staff, largely as we the Board the the Board have one of members of Board’s findings adopted, proposed accept- sardonically after can’t HHLA’s that staff ”[o]ur remarked notwithstanding filing for practice them HHLA’s fail- law.” Second, adversary. its recently ure to serve the Board on the had occasion to comment acknowledge, 14(e) did treatment peti- not in its of the issue obligation to assess Section Board's us, the before that construction of statute was regard importance its tions with due "the contrary statutory to the definition of a club. preserving right the to vote.” inviolate citizen’s Third, very deciding favor a diffi- Coumaris, (citations in HHLA’s slip op. supra, at 10 omit- which, question light disposition, ted). consideration, cult of our question light of this we namely, we do not whether the "club” requirement legality purported the of the Board's reach— which the was located service, for contained to be person” which is nowhere "in by required § “restaurant” as D.C.Code 25- § 25- found the statute. See D.C.Code 116(a) acknowledge ad- Board failed to or Moreover, 115(e)(3). —the even if we were to assume its dress tension between construction plau- validity requirement, petitioners of this statutory place definition of a restaurant as a obligation sibly argued the Board had at which the sale food accounts for at least grounds, equitable Klu- waive on because it here gross receipts. See D.C.Code annual 45% “affirmatively ger apparently misled” had been 25-103(14). § Ouriaghli by e.g., the Board’s staff. 392, Moore, (D.C.1993). handling troubling Even more was the Board’s out, however, neighborhood As it turned petitioners’ attempt right to exercise the provisions applicable to this case veto were not neighborhood veto in accordance with Section correctly pointed in its brief at all. out As HHLA Act, 25-115(e). 14(e) gen- See court, 14(e) unambiguously states in this Section Coumaris, 900; erally supra, A.2d at Gerber (e) shall provisions of this that "the subsection Beverage v. District Columbia Alcoholic Control li- apply applications for a retailer’s not cense, ... Bd., Five ob- a club.” the Board for Neither class C/X through desig- jectors protest petitions filed their problem parties any this nor detected Kluger, representative, L. Jerrold nated agency. The during proceeding 1607.5, they personally but did not DCMR 14(e) petitions section Board's dismissal petitions carry Board’s The office. questionable grounds on a on was thus based staff, by petitions accepted to- were the Board’s applicability to these misapprehension as to the gether representation Kluger’s letter. Klu- concededly complex statute facts of the ger inquired, at both the time of testified he enforcing. charged with is Board following by day, filing telephone as to authority issues of judiciary The is the final any pro- problems with the whether there were Chevron, U.S.A., supra, statutory construction. petitions. told that there were none. test He was n. 9. n. 104 S.Ct. at 2781 467 U.S. at 843 petitions rejected Subsequently, the Board defer to Although appropriate to it is sometimes objectors’ comply failure account 1703.6, agency expertise, S.Ct. at "[ajny id. which states that 35 DCMR a case. objector petition process we that this is such eligible conclude initiate States, 245, 250-51, Accordingly, Iselin v. United U.S. the Board’s order this case. (1926).6 HHLA, says L.Ed. 566 if the Board had construed the correctly, HHLA have statute then could III. timely application which would not filed reasons, foregoing For the the Board’s de- by have been barred the moratorium. reversed, cision is and the case is remanded relied, detriment, HHLA it claims that deny to the Board with directions to ruling apply on the Board’s that it could for a retailer’s license and to re- having incorporated license without been previously voke the license issued. days application. at the time of its So ordered. gravamen position The of HHLA’s is that by was “lulled” the Board’s erroneous ON PETITION FOR REHEARING new, filing struction into not In Chase v. District Columbia Alcoholic timely application time valid and at some (D.C. Bd., Beverage Control No. 94-AA-184 incorporated three months after it had been 1995) (Chase July I), this court held that but before the moratorium became effective. granting the Board erred in intervenor H.H. that, points out the time this court (HHLA) Leonards Associates a Class CX ruling set aside the Board’s and eliminated retailer’s license. We concluded that Board, the basis for HHLA’s reliance on the was not entitled to the license because it had application. it was too late to file the Ac- incorporated not been for three months im- HHLA, cordingly, says equitable consider- mediately prior application, to the date of its preclude ations should the relief ordered and that it therefore had not been a club for the court. period required by lll(a)(7)(G)(ii) (1991).1 We reversed the “lulling’ “unique circum Board’s decision and remanded the case to “designed stances” a doctrine was create the Board with directions to revoke the li- very equitable exception rigorous narrow previously deny cense issued and to HHLA’s filing requirements.” e.g., Frain v. Dis application. (D.C. Columbia, trict 451 of timely petition HHLA has filed a for re- 1990). doctrine, In order to invoke the hearing in which it does not contest the HHLA must show that its reliance on the court’s construction statutory of the three- erroneous action of the Board was reason requirement, argues month but that the re- Id.; Moore, Ouriaghli able. see also v. lief which the court ordered the Board to (D.C.1993); A.2d Harris Truck cf. grant points was overbroad. HHLA out that Lines, Packers, Inc., Cherry Inc. v. Meat the moratorium on issuance of new Class CX 215, 216-17, 283, 284-85, U.S. geographic licenses in the area where curiam). (per L.Ed.2d 261 located, purported HHLA’s club was I, case, present Chase at 1269 n. did not become effec- In the we noted in 22, 1994, I, July tive until seven months after HHLA’s claim that it had been a Chase published Regis- 6. There are circumstances in this case of Columbia and in District 3, 1993, arguably temper any hypothetical ter on December less than two weeks unfairness in D.C.Reg. See 40 Board’s decision. according the enforcement of the statute (1993). Although 16, 1993, the moratorium did not shortly terms. On June before the apply application, its terms to HHLA’s its case, hearings Board’s in this the Board unani- promulgation equities has some relevance to-the on, mously year approved a five moratorium controversy. of this alia, any inter the issuance of new Class C/X given in the area. The for the licenses reasons May We that on also note very moratorium were similar to some of the preclude 25-116 was amended so as to arguments by petitioners, substantive made and retailer’s licenses to clubs in residen- issuance of Commission, Advisory Neighborhood in 10-122, Supp.1995; tial See id. D.C.Law areas. application, including opposition to HHLA’s in (1994). 2(g); D.C.Reg. particular the over-concentration of licensed es- statute, tablishments in the area and their adverse effects applicable a club must be a 1. Under the ap- peace not-for-profit corporation. and order. The was moratorium 25- I, 103(7) (1991); supra, proved by at the Council of the District of Columbia Chase upon showing for three months at time it its a of affirmative statements club filed not be with the which have part could reconciled actions on tribunal unambiguous statutory requirement claiming a party have been lulled. misled the corporation. Frain, ruling a A supra, club be See D.C.Code A.2d at 451-52. (1991). 103(7) do not that HHLA We believe HHLA’s HHLA’s made at behest reasonably rely on notion that an could contrary statutory language, does and unambiguous statute does not mean what misleading affirma constitute the kind if, Moreover, says. solely even for the sake HHLA representation on which suc tive argument, indulge we were dubious reasonably cessfully claim to have relied. assumption that HHLA its counsel were (“we question id at 451 whether the See dispositive January unaware of statute request by the acquiescence court’s mere in a application for a when the sufficient”).2 movant would be filed, was and that such lack of awareness alternative, contends, HHLA sufficiently reasonable to warrant invo- interpretation apply the court should doctrine, parties lulling of the all cation prospective rather statute than “on surely the prob- cerned were made aware It relies on French retroactive basis.” petitioners lem in June when invoked Zoning Adjust Columbia Bd. District asked Board to dismiss statute and ment, (D.C.1995),and Mendes 658 A.2d 1023 application. put Petitioners’ motion (en Johnson, (D.C.1978) 389 A.2d 781 HHLA on that its unorthodox inter- notice banc). stated Mendes and reiterated pretation statutory language was now in French that challenged, being they surely ap- were prised possibility interpreta- that this application of a new retroactive [w]here scrutiny. might rigorous tion not withstand disruption rule would result substantial injustice to a motion, of settled transactions petitioners’

Upon filing and/or party of reliance on the continued because had a It elect to file a choice. could legal especially validity application for a which would be new rule — extremely long standing are one compliance for at the —courts retroactive effect to motion, reluctant accord petitioners filed their time overruling decisions. year, incorporated for half had been substantially longer than Mendes, supra, quoted Alternatively, rely HHLA could required. French, supra, A.2d at 1031. original application, on which had been Mendes, however, the doctrine which than after HHLA’s filed less three-months had en banc court overruled been gamble possibility incorporation, and on decades, it many and reliance on effect pre- the non-literal construction would widespread. reasonable Simi- both vail. French, prevailing parties had larly, in second, plainly riski- chose the upon opinion in reliance an acted er, persuaded It the Board to course. then had been Corporation issued Counsel which, adopt interpretation previously had 1977 and which never been I, contrary held Chase was we case, challenged present In the court. rehearing, unambiguous language. On hand, HHLA has not shown or the other the statute is HHLA does not assert legal long-standing on a alleged that relied this has miscon- ambiguous or that court surprisingly suddenly or which was doctrine HHLA has it. We conclude that strued Indeed, court. abandoned reliance that its failed to demonstrate precedent by HHLA is the Board’s cited reasonable. Board’s decision was present case. That ruling erroneous noted, we was secured

Moreover, ruling, as have “unique circumstance” do not believe that only HHLA itself. We may successfully invoked be doctrine Frain, whether, Indeed, supra, reasonably 572 A.2d 451-52. might ask 2. one the lullor or the lullee. See HHLA was this principles set forth in Mendes and French any application

have to circumstances such presented

as those here.3 recognize that the result we reach

be a might harsh one vis-a-vis HHLA. It

arguably have been more reasonable for

Congress require a club to have been

incorporated for three months at the time it

received its rather than at the time applied

the club for one. The how-

ever, provide, does not so and this court is authority subjective

without to substitute its

perceptions justice of fairness and for the

requirements e.g., Ayers the law.

Landow, reasons, foregoing

For the petition

rehearing granted. is The decision in Chase

I is reaffirmed.

So ordered.

Alphonzo CLEMENTS, Appellant, STATES, Appellee.

UNITED

No. 94-CF-324.

District of Appeals. Columbia Court of

Submitted Dec. 1995.

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

Case Details

Case Name: Chase v. District of Columbia Alcoholic Beverage Control Board

Court Name: District of Columbia Court of Appeals

Date Published: Nov 13, 1995

Citation: 669 A.2d 1264

Docket Number: 94-AA-184

Court Abbreviation: D.C.