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to press.

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 21-AA-748

CHRISTOPHER CONRAD, PETITIONER,

v.

DISTRICT OF COLUMBIA ALCOHOLIC BEVERAGE CONTROL BOARD, RESPONDENT.

Petition for Review of an Order of the

District of Columbia Alcoholic Beverage Control Board

(2021-PRO-000025)

(Submitted November 7, 2022 Decided January 12, 2023)

Brandi G. Howard, Abram J. Pafford, and Alicia M. Penn were on the brief 

for petitioner.

Karl A. Racine, Attorney General for the District of Columbia at the time of 

submission, Caroline S. Van Zile, Solicitor General, Ashwin P. Phatak, Principal 

Deputy Solicitor General, Graham E. Phillips, Assistant Attorney General, and 

Richard S. Love, Senior Assistant Attorney General, were on the brief for 

respondent.

Before EASTERLY and MCLEESE, Associate Judges, and FISHER, Senior Judge.

MCLEESE, Associate Judge: Petitioner Christopher Conrad challenges an 

order of the District of Columbia Alcoholic Beverage Control Board renewing 
2

Holiday Family Liquor, Inc.’s license to sell alcoholic beverages. We vacate the 

Board’s order and remand the case for further proceedings. 

I. Factual and Procedural Background

Holiday applied for renewal of its license to sell alcoholic beverages. A group 

including Mr. Conrad opposed the application. Mr. Conrad lives near the store at 

issue. The local Advisory Neighborhood Commission (ANC) also opposed the 

application. To obtain renewal, Holiday was required to demonstrate that its liquor 

store “is appropriate for the locality, section, or portion of the District where [the 

establishment] is to be located.” D.C. Code § 25-313(a). In making that 

determination, the Board must consider all relevant evidence, including the effect of 

the establishment on real-property values; the effect of the establishment on peace, 

order, and quiet, including the noise and litter provisions set forth in D.C. Code 

§§ 25-725 and -726; and the licensee’s record of compliance with alcoholicbeverage statutes and regulations and any conditions imposed on the license, 

including the terms of any settlement agreement. D.C. Code §§ 25-313(b)(4)

and -315(b)(1). Section 25-726 requires licensees to “take reasonable measures to 

ensure that the immediate environs of the establishment, including adjacent alleys, 

sidewalks, or other public property immediately adjacent to the establishment, or 
3

other property used by the licensee to conduct its business, are kept free of litter.” 

D.C. Code § 25-726.

The Alcoholic Beverage Regulation Administration (ABRA) conducted an 

investigation into Holiday’s renewal application. The report of that investigation 

was admitted into evidence by the Board, and the Board also held an evidentiary 

hearing. The evidence before the Board included the following.

An ABRA investigator visited Holiday on ten occasions over a period of 

approximately one month. The investigator found no statutory or regulatory 

violations and no peace, order, or quiet issues. The investigator did see some 

individuals congregating in the parking lot on one occasion. On most occasions, 

some individuals were sitting in lawn chairs at the end of the small strip mall of 

which Holiday is a part. 

The ABRA investigator spoke to an ANC Commissioner about the ANC’s 

opposition to renewal. The ANC Commissioner reported that (1) Holiday was near 

to schools; (2) minors patronize Holiday and have bought alcohol there; (3) Holiday 

had been caught selling alcohol to minors three times in the last five years; and (4) a 

minor had been shot and killed right in front of Holiday.
4

The ABRA investigator searched police records and determined that there had 

been 163 calls for service to Holiday’s address in the preceding year, for reasons 

including illegal drug activity, disorderly persons, shots fired, and persons with 

weapons. According to the ABRA investigator, none of those incidents was

determined to be an ABRA violation. The ABRA report also noted two ABRA 

violations in the preceding three years: one for failure to follow a settlement 

agreement and one for sale to a minor.

A settlement agreement had been reached between a prior owner of the store 

and a community group. Among other things, the agreement required the store to 

refrain from selling alcohol or cigarettes to minors and to take reasonable steps to 

prevent loitering in front of the store. The agreement provided that complaints 

concerning the store would be forwarded to a business association, with written 

notice to the store.

At the evidentiary hearing, the ABRA investigator explained that the people 

sitting in lawn chairs did not appear to be on Holiday’s property but instead seemed 

to be next to the property. The ABRA investigator acknowledged having seen litter 

near that group and on the adjacent road. The ABRA investigator explained that a

school entrance was directly across the street from Holiday. The ABRA investigator 
5

acknowledged that there also had been two additional sales to minors at Holiday, 

one in 2015 and one in 2016.

Holiday’s owner testified about the store’s use of security cameras and 

lighting, its efforts to prevent sales to minors, and its efforts to maintain the 

cleanliness of the store, the parking lot, and the areas surrounding the store. The 

owner testified that children were not permitted in the store without a parent. The 

owner also testified that litter in the area was from the nearby market, not the liquor 

store.

A community supporter of Holiday testified that the store was pretty clean for 

the area and that she had never seen a child in the store or crime inside the store. In 

her view, the store was not related to the criminal activity in the area. Rather, the 

problems in the area related to a market in the mall. Moreover, that witness testified 

that the entire ward in which the store is located is not safe. 

Another community supporter acknowledged having seen some littering in 

and around the store “a while ago,” but she testified that she no longer saw litter. 

She did not see people loitering in the parking lot, although she did see people in 
6

lawn chairs on public property. In her view, the crime in the area related more to 

illegal drug use than to alcohol use.

The principal of a school located about a block away from Holiday testified 

that the school had had several instances of students purchasing alcohol or cigarettes 

at the store. The principal personally saw children in the store “purchasing items 

they should not have been purchasing.” She also testified that families had 

complained about safety concerns because people loitered in front of the store and 

solicited children to participate in inappropriate activities. According to the witness, 

children were “curtailed from . . . passing” by the store because of the severe 

violence and trafficking at that location. In the incident in which the child was killed 

near the store, the intended targets frequented the store and were standing on the 

property of the store and the nearby market at the time of the shooting. (Although 

this issue is disputed, the Board found that the store was closed at the time of the 

shooting.)

The ANC Commissioner for the area including Holiday testified that it was 

common knowledge that the store sells alcohol to minors and had done so many 

times without being caught. The Commissioner described a complaint to the 

Department of Consumer and Regulatory Affairs (“DCRA”) brought against 
7

Holiday by a neighboring property owner about trash on her property that came from 

Holiday. That complaint, which was introduced into evidence, alleged that the store 

did not attend properly to trash, which blew onto the neighbor’s property and 

attracted rodents and pests. 

The ANC Commissioner also testified that alcohol and cigarettes had been 

found in the lockers of students at a nearby school. In the Commissioner’s view, 

there was a nexus between the violence in the area and Holiday, and the store was 

disrupting the peace, order, and quiet of the community. The Commissioner also 

believed that the store was having a negative impact on property values in the area 

and that the store had not adopted reasonable measures to deal with litter. The ANC 

recommended that the Board deny the renewal application. 

A former employee of the store admitted to having once sold alcohol to a 

minor by mistake.

Mr. Conrad presented police records indicating that there had been nine 

liquor-law violations at the address of Holiday during the preceding three years. 

Police records and reports also reflected numerous other assaultive and drug crimes 

in the vicinity of the store, including nine violent crimes involving a gun in the same 
8

block in the preceding period of approximately two years. Mr. Conrad also 

presented numerous survey responses from individuals, stating among other things 

that the store did not properly deal with trash, that the store sold liquor to minors,

and that violence and illegal activity near the store presented a danger to the 

community.

Finally, Mr. Conrad introduced photographs of the area behind the store 

depicting trash. 

II. Analysis

We will uphold a decision by the Board if the decision is in accordance with 

the law and supported by substantial record evidence. D.C. Code § 2-510(a)(3)(A), 

(E). “Substantial evidence is such relevant evidence as a reasonable mind might 

accept as adequate to support a conclusion, a standard satisfied with a minimal 

amount of evidence, given [the court’s] deference to [an] agency’s informed 

judgment and special competence in the matters before it.” Acott Ventures, LLC v. 

D.C. Alcoholic Beverage Control Bd., 135 A.3d 80, 88 (D.C. 2016) (citations, 

brackets, and internal quotation marks omitted). If substantial evidence supports the 

Board’s findings, the court “will not substitute [its] own judgment for that of the 
9

[Board,] even though there may also be substantial evidence to support a contrary 

decision.” Id. We give considerable deference to the Board’s interpretation of 

ambiguous statutory requirements that the Board administers. Levelle, Inc. v. D.C.

Alcoholic Beverage Control Bd., 924 A.2d 1030, 1035-36 (D.C. 2007). We review 

the Board’s evidentiary rulings for abuse of discretion. Kopff v. D.C. Alcoholic 

Beverage Control Bd., 381 A.2d 1372, 1386 (D.C. 1977). An agency decision must 

“state the basis of its ruling in sufficient detail and be fully and clearly explained, so 

as to allow for meaningful judicial review of and deference to the agency’s 

decision.” DC Appleseed Ctr. for L. & Just., Inc. v. D.C. Dep’t of Ins., Sec., & 

Banking, 214 A.3d 978, 985 (D.C. 2019) (internal quotation marks omitted).

A. Bias

Mr. Conrad argues that one Board member stated before the close of the 

evidence that he would be voting in favor of the application. We conclude that this 

argument is not supported by the record and provides no basis for relief.

During the hearing, one Board member raised a concern that another Board 

member might have already indicated an intention to vote in favor of renewing the 
10

license. The Board chairperson stated that no such thing had occurred. No party 

requested any further action, and the issue did not arise again. 

In this court, the Board suggests that this issue may have arisen from a 

misunderstanding of a question that the Board member asked a witness who was 

testifying in support of the application. That suggestion seems plausible, given that 

the Board member asked the witness the following question: “And someone who 

does support the renewal, I am interested in knowing, you know, how close are you 

to this establishment?” We need not resolve that matter definitively, however, given 

that Mr. Conrad did not seek any relief from the Board on this issue. “Parties 

challenging agency action generally must raise their claims first before the agency, 

because consideration of a claim raised for the first time on petition for review 

deprives the administrative agency of its right to consider the matter, make a ruling, 

and state the reasons for its action.” Fournier v. D.C. Zoning Comm’n, 244 A.3d 

686, 688 (D.C. 2021) (internal quotation marks omitted). “[I]n the absence of 

exceptional circumstances, a reviewing court will refuse to consider contentions not 

presented before the administrative agency at the appropriate time.” Id. (internal 

quotation marks omitted). We see no exceptional circumstances here warranting a 

departure from this general rule.
11

Mr. Conrad suggests more generally that the Board’s rulings demonstrated 

bias against him in the handling of the case. We see no adequate basis for that 

suggestion. Cf. generally, e.g., Khawam v. Wolfe, 84 A.3d 558, 569 (D.C. 2014) 

(“[J]udicial rulings alone almost never constitute a valid basis for a bias or partiality 

motion.”) (internal quotation marks omitted).

B. Failure to Enforce Subpoenas

Before the hearing, Mr. Conrad subpoenaed three former employees of the 

store whom he wished to question about alcohol sales to minors at the store. One of 

those witnesses appeared and ultimately testified, but the other two did not appear. 

When the Board asked Mr. Conrad what relief he was requesting with respect to the 

non-appearance of the witnesses, Mr. Conrad initially referred to provisions 

permitting the Board to go to the Superior Court to enforce subpoenas. Mr. Conrad 

immediately clarified, however, that he was not requesting a continuance.

In this court, Mr. Conrad argues that the Board erred by not taking steps to 

enforce the subpoenas. Mr. Conrad, however, did not ultimately ask the Board to 

take any further steps to enforce the subpoenas, instead making clear that he did not 
12

want a continuance. We see no exceptional circumstances warranting consideration 

of this issue even though the issue was not properly presented to the Board.

C. Consideration of Hearsay Evidence

Some of the evidence presented by Mr. Conrad was in the form of hearsay. 

Mr. Conrad argues that the Board did not correctly consider that evidence. We agree.

“Hearsay is generally admissible in administrative proceedings and can be 

regarded as substantial evidence.” Allen v. D.C. Rental Hous. Comm’n, 538 A.2d 

752, 754 n.8 (D.C. 1988). We have cautioned against placing undue or uncritical 

reliance on hearsay evidence. See, e.g., Compton v. D.C. Bd. of Psych., 858 A.2d 

470, 479 (D.C. 2004) (“Where . . . the declarant is available to testify and be crossexamined, the practice of relying exclusively on hearsay is strongly discouraged and 

should be heavily weighted against the sponsoring party. In the ordinary 

administrative case, hearsay is generally disfavored because in all adjudicative 

proceedings, cross-examination and confrontation are the handmaidens of 

trustworthiness in the face of factual dispute.”) (brackets and internal quotation 

marks omitted); Coalition for the Homeless v. D.C. Dep’t of Emp. Servs., 653 A.2d 

374, 377-78 (D.C. 1995) (“[H]earsay found to be reliable and credible may
13

constitute substantial evidence especially where the evidence is uncontradicted; but 

without extrinsic corroboration . . . such evidence will be scrutinized carefully.”) 

(citation, brackets, and internal quotation marks omitted). On the other hand, we 

have also cautioned against generally dismissing evidence as insubstantial simply 

because the evidence is in the form of hearsay. See, e.g., Compton, 858 A.2d at 478

(“[T]his court has adopted a flexible approach [to hearsay evidence in administrative 

proceedings] that rejects any rigid threshold requirement of competent corroborating

evidence . . . .”) (internal quotation marks omitted); James v. D.C. Dep’t of Emp. 

Servs., 632 A.2d 395, 398 (D.C. 1993) (citing with approval Johnson v. United 

States, 628 F.2d 187, 190-91 (D.C. Cir. 1980) (rejecting “a per se approach that 

brands evidence as insubstantial solely because it bears the hearsay label;” “instead 

. . . evaluating the weight each item of hearsay should receive according to the item’s

truthfulness, reasonableness, and credibility”) (brackets omitted)).

In the present case, the Board indicated that it would give exacting scrutiny to 

uncorroborated hearsay evidence. Mr. Conrad objects to that approach, arguing that 

although reviewing courts must give exacting scrutiny to agency decisions based 

solely on uncorroborated hearsay, agency decisionmakers should not themselves 

apply an “exacting scrutiny” standard when considering hearsay evidence. We agree 

with the Board on this broad point. If reviewing courts give exacting scrutiny to 
14

agency decisions based solely on uncorroborated hearsay, then it follows naturally 

that agencies should undertake exacting scrutiny before making decisions based 

solely on uncorroborated hearsay. 

Mr. Conrad also argues that the Board erred by treating the hearsay evidence 

at issue as wholly uncorroborated. We agree with Mr. Conrad on that point.

 

First, the Board declined to rely at all on the community comments raising 

concerns about trash, sales to minors, and violence and illegal activity near the store. 

The Board’s sole explanation for that decision was that “any factual statements 

contained within [those comments] are uncorroborated hearsay that cannot be relied 

upon as part of the Board’s factual findings.” That explanation appears to be 

inaccurate because, as described above, there was corroborative non-hearsay 

evidence relating to trash problems, sales to minors, and violence and illegal activity 

near the store. The Board thus erred by categorically declining to consider the 

community comments. See generally, e.g., Panutat v. D.C. Alcoholic Beverage 

Control Bd., 75 A.3d 269, 277 & n.12 (D.C. 2013) (in holding evidence sufficient 

to support Board’s order denying application for alcoholic-beverage license, court 

relied on, among other things, ANC Commissioner’s testimony describing 
15

constituent complaints about noise, littering, public urination, and public sexual 

activity associated with nightclub patrons).

Similarly, the Board refused to rely on statements in police reports prepared 

by Metropolitan Police Department officers describing criminal activity in or near 

the store. According to the Board, the statements in the reports were uncorroborated 

hearsay and could not be relied upon as “anything more than evidence of police 

activity.” It is unclear whether the Board’s refusal extended to the ANC report and 

other police records indicating that numerous offenses had occurred near the store. 

In any event, as described above, there was at least some corroborative non-hearsay 

evidence of offenses in or near the store.

Third, the Board declined to give “any probative weight” to the statements in 

the DCRA complaint about trash, because the statements were “not sufficiently 

corroborated.” The Board did not address, however, the non-hearsay evidence that 

arguably provided some corroboration for the statements in the complaint. That 

evidence included photographs of trash behind the store, testimony from other 

witnesses about trash near the store, and what the Board found was an 

acknowledgment by the store’s owner that the store had paid a fine related to litter 

and water drainage.
16

In sum, we conclude that the Board erred by broadly disregarding the hearsay 

evidence in this case as uncorroborated.

D. Shifting the Burden of Proof

The Board correctly acknowledged that Holiday bore the burden of proving 

that the store is appropriate for its location. D.C. Code § 25-311(a); 23 D.C.M.R. 

§ 400.1. Mr. Conrad argues, however, that the Board’s order did not actually hold 

Holiday to that burden. We agree.

At a number of places, the Board’s decision appears to put the burden of proof 

on the opponents of license renewal. For example, the Board stated that “it has not 

been established that crime and other issues in the area are traceable to the 

establishment”; stated that those issues “may be equally attributable” to other 

explanations; referred to the kind of evidence needed to make “a showing of 

inappropriateness”; and said that Holiday’s contribution to the issues was “unclear.” 

Given that Holiday bore the burden of proof, such uncertainties would tend to 

undermine rather than support license renewal. We do not mean to suggest that 

ambiguous references to the burden of proof by themselves will necessarily require 
17

reversal. See, e.g., Haight v. D.C. Alcoholic Beverage Control Bd., 439 A.2d 487, 

494-95 (D.C. 1981) (although Board made findings that could be construed as 

placing burden on opponents rather than applicant, reversal not required given 

substantial evidence in support of applicant and absence of evidence to contrary). It 

is important, however, for the Board to keep in mind that the absence of evidence on 

an essential point supports denial rather than granting of an application. See, e.g., 

Tiger Wyk Ltd. v. D.C. Alcoholic Beverage Control Bd., 825 A.2d 303, 310-11 (D.C. 

2003) (Board reasonably concluded that applicant failed to carry burden on issue of 

adverse effect on property values, where only evidence was that applicant did not 

know whether property values had decreased). 

E. Criminal Activity

The Board concluded that the store was located in a high-crime area and that 

the Board had not been presented with “compelling or persuasive evidence” that the 

criminal activity in the area was “persuasively traceable to Holiday.” Mr. Conrad 

objects to that ruling in several respects. We agree that a remand is necessary on 

this issue because, as we have already noted, the Board erred by categorically 

refusing to consider hearsay evidence that was potentially relevant to this issue and 
18

by placing the burden of proof on this issue on those opposing license renewal rather 

than on Holiday.

Mr. Conrad raises an additional challenge to the Board’s handling of evidence 

about criminal activity near the store: that the Board erred by precluding evidence 

of criminal activity near the store that did not involve ABRA violations. We are not 

persuaded by that argument. Although the Board chairperson did at one point 

suggest such a limitation, the chairperson quickly clarified that evidence of other 

criminal activity near the store would be admissible as long as the criminal activity 

had a nexus to the store. See generally D.C. Code § 25-313(b)(2) (directing Board 

to consider “effect of establishment on peace, order, and quiet”). 

F. Property Values

The Board concluded that Holiday was not having a negative impact on 

property values. The Board’s reasoning was (a) blight can have a negative impact 

on property values; (b) there was no evidence that “the property is substantially 

blighted”; and (c) the claim that the store was having a negative impact on property 

values was “purely speculative.” Mr. Conrad argues that the Board erred in its 

handling of this issue. We agree.
19

First, as already noted, the Board appears to have placed the burden of proof 

on this issue on those opposing license renewal rather than on Holiday.

Second, the Board did not address the testimony from the ANC Commissioner 

expressing the view that the store was having a negative impact on property values 

in the area. The Board did generally acknowledge that it was required to give great 

weight to the recommendation of the ANC and that the ANC’s concerns included 

the effect of the store on property values. See D.C. Code § 1-309.10(d)(3)(A) 

(requiring agencies to give “great weight” to “[t]he issues and concerns raised in the 

recommendations of the Commission”). The Board, however, did not actually give 

the ANC’s recommendation “great weight” as that term has been defined and 

interpreted: “Great weight requires acknowledgment of the Commission as the 

source of the recommendations and explicit reference to each of the Commission’s 

issues and concerns.” Id.; see also D.C. Code § 1-309.10(d)(3)(B) (“The written 

rationale of the decision shall articulate with particularity and precision the reasons 

why the Commission does or does not offer persuasive advice under the

circumstances. In so doing, the government entity must articulate specific findings 

and conclusions with respect to each issue and concern raised by the Commission.”); 

Kopff, 381 A.2d at 1384-85 (Board must make “explicit reference to each ANC issue 

and concern as such, as well as specific findings and conclusions with respect to 
20

each,” to ensure that Board “analyze[s] the matter in a way that evidences serious

attention to the ANC source itself”). To be clear, we do not mean to imply that the 

Board was required to accept the ANC Commissioner’s opinion as fact. Rather, our 

point is simply that the Board was required to specifically address that opinion.

Mr. Conrad argues that Holiday failed to introduce any evidence at all that the 

store was not adversely affecting property values. Thus, Mr. Conrad argues, this 

court should reverse outright and remand with instructions that the Board deny the 

application. In this court, the Board argues that in fact there was substantial evidence 

to support an inference that Holiday was not adversely affecting property values. 

The Board’s decision, however, does not rest on an analysis of the evidence and the 

inferences that could reasonably be drawn from the evidence. We therefore leave 

that issue for remand. See generally, e.g., DC Appleseed, 214 A.3d at 995 (“In

general, however, an administrative agency’s decision can be sustained on review 

only on the grounds on which the agency actually relied. When a party asks us to 

affirm an agency’s decision for a reason not relied on by the agency, we thus 

ordinarily remand the case for the agency’s consideration in the first instance of the 

reason advanced by the party seeking affirmance.”) (citation and internal quotation 

marks omitted).
21

G. Litter

The Board concluded that it had not been presented with “compelling or

persuasive evidence” that littering issues “are persuasively traceable to Holiday.” 

Mr. Conrad objects to that ruling in several respects. We agree that a remand is 

necessary on this issue.

First, as previously noted, the Board erred by categorically refusing to 

consider hearsay evidence that was potentially relevant to this issue and by placing

the burden of proof on this issue on those opposing license renewal rather than on 

Holiday.

Second, Mr. Conrad argues that the Board committed a legal error by treating 

it as irrelevant whether litter from the store ended up on nearby private property. We 

agree with Mr. Conrad. During the hearing, the Board ruled that evidence about 

litter on nearby private property would be irrelevant. The Board reiterated that 

conclusion in its decision. The Board reasoned as follows. (1) The license-renewal 

provisions direct the Board to consider whether the licensee has complied with its 

obligations under D.C. Code § 25-726. D.C. Code § 25-313(b)(2). (2) Section 

25-726 requires licensees to “take reasonable measures to ensure that the immediate 
22

environs of the establishment, including adjacent alleys, sidewalks, or other public 

property immediately adjacent to the establishment, or other property used by the 

licensee to conduct its business, are kept free of litter.” D.C. Code § 25-726. (3) The 

phrase “immediate environs” is best interpreted as limited to the property of the 

establishment and to adjacent public property, not to adjacent private property.

We need not and do not express a definite view as to the reasonableness of the 

Board’s interpretation of § 25-726. We do note, however, Mr. Conrad’s argument 

that it would be arbitrary and capricious to interpret § 25-726 to permit a licensee to 

dump litter onto adjacent private property. Even assuming that § 25-726 does not 

reach litter that ends up on adjacent private property, we conclude that § 25-726 

cannot reasonably be viewed as the sole measure of whether litter from a licensee is 

adversely affecting “peace, order, and quiet” in the vicinity of an establishment.

When considering an application for license renewal, the Board is directed to 

decide a broad question: whether the establishment at issue is “appropriate for the 

locality, section, or portion of the District where [the establishment] is to be located.” 

D.C. Code § 25-313(a). In the present case, the Board made that assessment by 

considering the effect of the establishment on the area located within 1200 feet of 

the store. See 23 D.C.M.R. § 1607 (governing geographic boundaries of inquiry into 
23

appropriateness of establishment). In making that determination, the Board was 

required to “consider all relevant evidence of record, including . . . [t]he effect of the 

establishment on peace, order, and quiet, including the . . . litter provisions set forth 

in” D.C. Code § 25-726. D.C. Code § 25-313(b)(2). The use of the term “including” 

indicates that the statutory list of considerations is illustrative rather than exhaustive. 

See, e.g., Young v. D.C. Dep’t of Emp. Servs., 241 A.3d 826, 831 & n.14 (D.C. 2020) 

(“In statutes, as elsewhere, the participle including typically indicates a partial list.”) 

(brackets and internal quotation marks omitted). In our view, the Board’s inquiry 

into the impact of litter from an establishment thus cannot reasonably be limited to 

whether the establishment itself violated D.C. Code § 25-726. See 23 D.C.M.R.

§ 400.1(a) (directing Board to consider whether litter from establishment will 

“interfere with the peace, order, and quiet of the relevant area”); Panutat, 75 A.3d at 

277 (in upholding denial of license application, court relies on evidence of littering

“around and on nearby residential property” by patrons of establishment) (brackets 

and internal quotation marks omitted).

In sum, we conclude that the Board erred by ruling that evidence relating to 

litter on nearby properties was irrelevant. The Board does not appear to have 

consistently enforced that ruling, because it admitted evidence of the DCRA litter 

complaint brought by a residential neighbor. On remand, the Board should consider 
24

whether its ruling requires reopening of the record. In any event, the Board on 

remand should not dismiss evidence of litter on nearby residential properties as 

categorically irrelevant.

H. Record of Compliance

The Board concluded that license renewal was supported by Holiday’s record 

of compliance with alcohol-control statutes, alcohol-control regulations, and the 

settlement agreement. D.C. Code §§ 25-313(b)(4) and -315(b)(1). Here too we 

conclude that a remand is required.

First, the Board’s assessment of this issue may have been affected by the 

Board’s decision to categorically disregard hearsay evidence of sales to minors as 

uncorroborated. 

Second, the Board acknowledged that Holiday had been sanctioned three 

times over a five-year period for sales to minors. The Board pointed out, however, 

that revocation of a license is discretionary if the licensee is determined to have 

committed three such violations within a three-year period and becomes mandatory 

only if the licensee is determined to have committed five such violations in a four-
25

year period. D.C. Code § 25-781(f)(1)-(5). In the Board’s view, denial of renewal 

was therefore unwarranted based on sales to minors.

Mr. Conrad argues that the Board erred by considering the statute governing 

license revocation when ruling on the distinct question whether a license should be 

renewed. On that broad point, we are not persuaded by Mr. Conrad’s argument. The 

decision whether to revoke a license is to a degree analogous to the decision whether 

to renew a license. Cf., e.g., Club Misty, Inc. v. Laski, 208 F.3d 615, 618 (7th Cir. 

2000) (“Illinois law treats a refusal to renew a liquor license as equivalent to 

revocation . . . .”). The Board therefore appropriately gave some weight to the 

provision governing revocation of license because of sales to minors. 

We do, however, disagree with the Board’s analysis in a narrower respect. 

The Board seemed to take the position that denial of renewal based on sales to minors 

would be permissible only if the requirements for revocation on that basis had been 

met. That conclusion is not obvious from the text of the renewal statute, which 

seems to require a less rigid inquiry into appropriateness. We do not believe that the 

Board has adequately explained a rationale for importing the specific requirements 

for revocation into the renewal statute. Moreover, the decision whether to renew a 

license must take into account “all relevant evidence.” D.C. Code § 25-313(b). A 
26

problem with sales to minors thus is relevant to the overall appropriateness of an 

establishment even if that problem by itself would not require license revocation. 

The Board, however, appears to have treated the issue of sales to minors as irrelevant 

once the Board determined that the problem would not by itself require revocation. 

In our view, that was error. Cf., e.g., United States v. Arvizu, 534 U.S. 266, 274 

(2002) (in applying “totality of the circumstances” test, courts should not utilize 

“divide-and-conquer analysis” by evaluating and rejecting factors in isolation rather 

than considering factors collectively) (internal quotation marks omitted).

The Board also concluded that no pattern of violation of the settlement 

agreement had been shown. We conclude that remand is warranted on this issue as 

well. First, the Board’s consideration of this issue may have been affected by the 

Board’s decision to categorically disregard hearsay evidence of sales to minors as 

uncorroborated. Second, the Board appears to have taken the view that conduct by 

Holiday that was inconsistent with the settlement agreement would be irrelevant 

unless the procedures under the settlement agreement relating to notice of 

complaints had been followed. The Board does not defend that line of reasoning in 

this court. We therefore consider that point abandoned. Cf., e.g., In re Shearin, 764 

A.2d 774, 778 (D.C. 2000) (“[F]ailure to address an issue in the brief results in 

waiving the issue on appeal.”) (internal quotation marks and parentheses omitted).
27

I. Remedy

Mr. Conrad argues that the Board’s order was not supported by substantial 

evidence on several dispositive points and that this court should therefore reverse 

the order and remand with directions to deny the application. We decline to grant

that request. As we have noted, the substantial-evidence standard can be satisfied 

“with a minimal amount of evidence,” and this court “will not substitute [its] own 

judgment for that of the [Board,] even though there may also be substantial evidence 

to support a contrary decision.” Acott Ventures, 135 A.3d at 88 (internal quotation 

marks omitted). We are not persuaded at this juncture that no reasonable 

decisionmaker could rule in favor of Holiday. 

The Board argues that some of the errors alleged by Mr. Conrad were not 

prejudicial and that this court therefore should affirm the Board’s ruling. We 

disagree. We are unable to say that the Board’s decision was unaffected by the errors 

we have identified. See, e.g., R.O. v. Dep’t of Youth Rehab. Servs., 199 A.3d 1160, 

1167 (D.C. 2019) (“Our case law establishes that remand is required if substantial 

doubt exists whether the agency would have made the same ultimate finding with 

the error removed.”) (internal quotation marks omitted). 
28

For the foregoing reasons, we vacate the order of the Alcoholic Beverage 

Control Board and remand for further proceedings.

So ordered.