1601 ADMINISTRATIVE REVIEW.

1601.1 Before any license is issued, renewed, or transferred to a new location, and before any substantial change to the operations of a licensed establishment may be made, the Board shall provide notice to the public pursuant to the notice requirements set forth under §§ 1502, 1503, and 1504. Notice provided to the public shall specify the information required by D.C. Official Code § 25-423(b), including the final day of the protest period and the license application's administrative review date.

1601.2 The administrative review hearing shall be a non-adversarial proceeding held by the Board's agent at which a list of applications for the licensing actions set out in § 1605.1 and the names of protestants who have filed an objection pursuant to D.C. Official Code § 25-601 shall be read to the public. For purposes of this section, the Board's agent shall be defined as an ABRA Office of the General Counsel employee at or above the Grade 12 level, excluding the ABRA General Counsel.

1601.3 If no written objection to an application has been received by the Board during the protest period, the Board's agent shall hold an administrative review on the application within fifteen (15) calendar days after the end of the protest period. An objection must be received by the Board prior to the end of the protest period to be considered timely filed.

1601.4 If an objection, in the form of a protest or by Protest Petitions (as set forth in § 1800.2 of this title), has been received by the Board during the protest period, the Board's agent shall so state and the Board's agent shall set a date for a status hearing before the Board unless the scheduling of a roll call hearing before the Board is necessary as required by § 1602A.8. In setting a date for a status hearing, the Board's agent may also approve a joint request by the parties to schedule a settlement conference prior to the status hearing date.

1601.5 Each applicant, and each person submitting a protest shall attend the administrative review hearing in person or appear through a designated representative.

1601.6 Failure to appear at the administrative review hearing either in person or through a designated representative may result in denial of the license application or dismissal of a protest unless good cause is shown for the failure to appear. Examples of good cause for failure to appear include, but are not limited to:

(a) sudden, severe illness or accident;

(b) death or sudden illness in the immediate family, such as spouse, partner children, parents, siblings;

(c) incarceration; or

(d) severe inclement weather.

1601.7 A recommendation by the Board's agent to deny a license application or dismiss a protest for failure to attend the administrative review shall be forwarded to the Board for consideration in writing. The Board's decision to adopt or not adopt the recommendation of the Board's agent to deny a license application or dismiss a protest for failure to appear shall be sent to the parties in writing. A request for reinstatement with the Board must be filed within ten (10) days after notification from the Board of the dismissal or denial. In reviewing the request, the Board shall consider whether, in the discretion of the Board, the party has shown good cause for his or her failure to appear at the administrative review.

1601.8 The Board's agent shall schedule a roll call hearing for the next regularly scheduled Board meeting rather than a status hearing before the Board when:

(a) a dispute exists regarding whether the placards at an applicant's premises have remained visible to the public for a full forty-five (45) calendar days;

(b) a legal issue is raised that would preclude the Board from granting the application, including but not limited to:

(1) the applicant's distance from a school or recreation center operated by the D.C. Department of Recreation;

(2) whether the applicant's proposed establishment is located in a residential-use district; and

(3) whether the applicant's voluntary agreement prohibits the application;

(c) a dispute exists regarding the legal standing of a party or whether a party has raised legally permitted protest issues; or

(d) any other legal issue arises that requires a decision by the Board. When a dispute arises regarding the applicant's distance from a school or recreation center operated by the D.C. Department of Recreation, the Board's agent shall request that a measurement be conducted by ABRA in advance of the scheduled roll call hearing.

1601.9 At the administrative review, the Board's agent shall have the authority to:

(a) regulate the course of the hearing;

(b) request the persons appearing at the hearing to state their respective positions concerning any issues in the proceeding and their support of or opposition to such issues;

(c) request or accept written documentation from the parties including letters of representation;

(d) identify the parties with standing and the filed protest issues, if undisputed;

(e) approve a joint request from the parties for a scheduled settlement conference;

(f) grant a request to continue the administrative review consistent with the requirements of D.C. Official Code § 25-441 and § 1705;

(g) adjourn a hearing and establish the date when the hearing will be continued; and

(h) take any other action authorized by, or necessary under, this section.

1601.10 Upon the scheduling of an application for administrative review with the Board's agent, all parties shall be prohibited from participating in any ex parte communication with the Board's agent relevant to the merits of the proceeding. This shall include any oral or written communication not in the public hearing record with respect to which reasonable prior notice is not given to all parties to the proceeding.

1601.11 The administrative review shall be open to the public and transcribed by a certified court reporter.

SOURCE: Final Rulemaking published at 51 DCR 4309 (April 30, 2004); as amended by Final Rulemaking published at 55 DCR 12991 (December 26, 2008).