12/18/2010 04:09 FAX oor » DISTRICT OF COLUMBIA COURT OF APPEALS » Historic Court House id 430 E Street, NW » Washington, DC 20001 - & Phone: 202/879-2709 , Email: Iwilliams@deappeals.go E . oe EXPEDIT Number of Pages: | (does not include transmittal sheet) Comments: esventtta 12/18/2010 04310 FAX Booz [LE hy Bisteict of Columbia F, - J uy Court of Appeals DEC 15 2010 No, 10-AA-1536 OSS oe aug ROGER GORDON, Petitioner, v 10-251-220 DISTRICT OF COLUMBIA ALCOHOL BEVERAGE CONTROL BOARD, Respondent, BEFORE: Fisher and Oberly, Associate Judges, and Farrell, Senior Judge, ORDER ‘On consideration of the petition for review, petitioner's motion for injunctive relief, also construed 2s a motion to stay the lifting of the summary suspension of the liquor license issued to Bar 9, trading as DC 9, itis ORDERED that petitioner’s motion for injunctive relief and to stay the lifting of the summary suspension is denied on the merits. See Barry v. Washington Post Co., 529 A.2d 319, 321 (D.C. 1987). Iris FURTHER ORDERED that petitioner shall, within 20 days from the date of this order, show cause why his petition for review should not be dismissed since petitioner lacks standing 10 appeal the respondent's decision since petitioner was neither a party nor participated in the proceedings before the Board. PER CURIAM Copies to: Roger Gordon 407K Street, NE Washington, D.C, 20002 Todd 8, Kim, Esquire Solicitor General-Distict of Columbia Andrew J. Klein, Esquire ‘Scott H. Rome, Esquire 1225 19” Street, NW, Suite 320 Washington, D.C. 20036IN THE DISTRICT OF COLUMBIA COURT OF APPEALS ROGER GORDON, Petitioner, v, No. 10-AA-1536 DISTRICT OF COLUMBIA ALCOHOLIC BEVERAGE CONTROL BOARD, Respondent, OPPOSITION BY THE DISTRICT OF COLUMBIA The District of Columbia Alcoholic Beverage Control Board (ABC Board) opposes Roger Gordon's motion for an injunction to prevent the Board from restoring the retailer's license of a nightclub known as DC 9 following an emergency suspension of that license Gordon is not entitled to relief under the familiar factors the Court must weigh to determine whether to grant injunctive relief: whether he is likely to succeed on the merits of this appeal, ‘whether denial of the injunction would cause irreparable harm to him or the parties, and whether the Public interest favors granting a stay. Barry v. Washington Post Co., 529 A.2d 319 (D.C. 1987), Injunctive relief is not warranted here becauise Gordon has shown no likelihood of succeeding on the merits of his petition for review and has not demonstrated that he or others will suffer irreparable harm if DC 9 reopens. Moreover, he has not demonstrated standing to challenge the Board’s action here. ‘The ABC Board has restored DC 9's license to operate as of this date; it is the Board’s understanding that DC 9 will reopen to the public this Friday, December 17, 2010,BACKGROUND Until October 19, 2010, the nightclub Bar 9, LLC va DC 9 (DC 9), located at 1940 9" ‘Street, N.W,, in the District, was the holder of a District of Columbia Retailer's License Class CN. See ABC Board’s Nov. 5, 2010, indings of Fact, Conclusions of Law, and Order of Summary Suspension (Nov. 5 Decision) (Exhibit B to Gordon’s Petition for Review and Motion for Injun« Relief). As detailed in the Board’s November 5 Decision, the Board summarily suspended that license on October 19, 2010, at the request of the Chief’ of the District's Metropolitan Police Department (MPD) following an incident involving a suspected homicide outside the nightclub October 15, 2010, Nov. 5 Decision at 1-2. The Board held a hearing in the ‘matter November 1, 2010, and issued the November 5 written decision maintaining the suspension of DC 9s license, AS reflected in the Board’s November 5 decision, the incident involved an apparently- intoxicated man, Ali Mohammed, who was denied entry to DC 9 and then allegedly threw bricks through the nightclub’s front window. Id. at 3-4. ‘There was evidence that one of the minority owners of DC 9, Bill Spicler, and at least two of the elub’s employees then chased Mohammed and punched and kicked him while he was on the ground, although there was contrary evidence that the men merely subdued and restrained him. fd. at 4, 9. Mohammed was taken by ambulance to the hospital, where he died; the ambulance driver described the man as being in cardiae arrest. Id. at 10. Five men ~ Spieler and four DC 9 employees — were arrested in connection with the incident. Id at 8. Another owner of DC 9, Joe Englert, fired the arrested employees and Spieler resigned from operations until the matter is resolved. 1d. (Spieler is @ ten percent owner of the club. Dec. 1, 2010, Tr. 37) ‘The Board concluded in its November 5 decision that, because there was an ongoinginvestigation by MPD, and the Board had not heard from the arrested men, the Board could not determine “whether the owner and the other employees involved merely restrained the decedent or assaulted him.” Jd. at 13. Nevertheless, the Board concluded that the facts presented at the summary suspension hearing were sufficient to demonstrate that DC 9 then posed “an imminent danger to the health and safety of the public.” 1d. ‘The Board held a follow-up hearing December 1, 2010. The club had submitted a new security plan to the Alcoholic Beverage Regulation Administration (attached), and had installed new, modern security cameras, Transcript (Tr.) 6-30, 34-35 (attached). The Board noted that the October 15, 2010, incident (which is still under investigation by the MPD) was “very troubling to the Board and the community,” but ordered that the suspension of DC 9’s license would expire December 15, 2010, subject to certain conditions. Tr, 59-61. Those conditions include that the amested men must cease employment at the club and Spicler is to cease any day-to-day relationship with the club, at least until the next review hearing January 9, 2011. Tr. 60-61, DC 9 must re-train all security personnel, and club employees are not to detain patrons except in self defense or defense of others. Jd. Further, DC 9 must employ officers from the MPD reimbursable detail whenever the club is open. /d' The Board noted that the club has had an unblemished record over the six years of its operation, except for this incident, Tr. 46. The District of Columbia took the position at the hearing that the threat of imminent harm to the ‘community and the public had been remedied by the actions taken by the club. Tr. 31-32. According to Martha Jenkins, General Counsel to the Alcoholic Beverage Regulation Adi ration, DC 9°s license has been restored this date, A further status hearing is scheduled for January 19, 2011, to review the new improved changes to the club’s security and to ensure ' The attached invoice reflects that DC 9 has already paid the MPD for two MPD officers to provide security through December.ongoing compliance with District law, Tr. 63. ARGUMENT Gordon has not made the strong showing necessary for the extraordinary injunctive relief he seeks, He is not entitled to relief under the four controlling factors the Court must weigh to determine whether to grant a stay or an injunction: whether Gordon is likely to succeed on the merits of his challenge to the ABC Board’s decision; whether denial of the stay or injunction ‘would cause irreparable harm to him or the parties to the proceeding: and whether the public interest favors granting an injunction, Barry v. Washington Post Co., 529 A.2d 319 (D.C. 1987). Injunctive relief is not warranted here because Gordon is nol likely to prevail on the merits and the balancing of the prospective harm to him, the parties, anid the public dictates against a stay 1, Gordon has shown no likelihood of ‘succeeding on tb merits of his petition for review. The Board decided to reinstate DC 9's license after ensuring that the owner and employees involved in the incident were no longer employed by DC 9 and no longer involved in {ts day-to-day operations. Further, DC 9 submitted a new security plan and installed new security cameras. The Board imposed other conditions to ensure the safe operation of the elub, including increased security measures and training of security personnel, and the requirement that DC 9 employees not detain any patrons. As a safeguard, the Board is having the licensee back in for a status hearing on January 19, 2011 to review and ensure ongoing compliance with the new improved changes. The Board’s decision is in no way arbitrary, capricious, or otherwise an abuse of discretion or not in accordance with law. Jameson's Liquors, Inc. v. District of Columbia Alcoholic Beverage Control Board, 384 A.24 412, 417 (D.C. 1978). Moreover, Gordon was not a party, witness, or intervenor below, and does not have standing to pursue his petition for review here. See Miller v. D.C. Bd. of Zoning Adjustment, 948