1000 Feet DC Inc. v. D.C. Alcoholic Beverage and Cannabis Board

Notice: This opinion is subject to formal revision before publication in the Atlantic

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 24-AA-0512

1000 FEET DC, INC., et al., PETITIONERS,

V.

DISTRICT OF COLUMBIA

ALCOHOLIC BEVERAGE AND CANNABIS BOARD, RESPONDENT.

On Petition for Review of an Order of the

District of Columbia Alcoholic Beverage and Cannabis Board

(2024-PRO-00033)

(Argued March 27, 2025 Decided August 14, 2025)

Katherine E. M. McQuillen, with whom Mark D. Lytle and Brian A. Hill were

on the brief, for petitioners.

Dia Rasinariu, Assistant Attorney General, with whom Brian L. Schwalb¸

Attorney General for the District of Columbia, Caroline S. Van Zile, Solicitor

General, Ashwin P. Phatak, Principal Deputy Solicitor General, and Carl J.

Schifferle, Deputy Solicitor General, were on the brief, for respondent.

Before DEAHL and HOWARD, Associate Judges, and STEADMAN, Senior Judge.

DEAHL, Associate Judge: This case arises from Green Theory LLC’s

successful application for a license to operate a medical cannabis dispensary at 4828

MacArthur Boulevard Northwest. While the application was pending, ten residents

known collectively as the Wolverton Group filed a written protest with the D.C.

2

Alcoholic Beverage and Cannabis Board on the ground that Green Theory’s

proposed location was within 1,000 feet of several schools. The Board dismissed

the protest for lack of standing, reasoning that only affected Advisory Neighborhood

Commissions (ANCs) could raise such a protest under the relevant statute, and

approved Green Theory’s application.

Petitioners 1 now seek review in this court. They argue that the Board’s actions

should be set aside because (1) the Board’s determination that only ANCs have

standing to protest a cannabis retailer license is an incorrect and unconstitutional

reading of the Medical Cannabis Amendment Act of 2022, and (2) the Board’s

decision to issue Green Theory’s license is unlawful and arbitrary and capricious

because federal criminal law sets enhanced penalties for the sale of marijuana within

1,000 feet of schools.

The Board counters that we lack jurisdiction to hear this case because our

direct review of agency actions is limited to contested cases. D.C. Code §§ 2-510(a),

11-722. Contested cases are those in which the agency made an adjudicative

decision after a trial-type hearing required by statute, regulation, or constitutional

right was held, or when the agency was required to hold such a hearing before issuing

1

Petitioners include three members of the Wolverton Group, three additional

individuals, and 1000 Feet DC, Inc., a broader group of parents concerned about

children’s exposure to drugs.

3

its decision but declined a request to do so. Id. § 2-502(8); see also Burkhardt v.

D.C. Rental Hous. Comm’n, 198 A.3d 183, 188 (D.C. 2018) (defining “contested

case”). The Board argues that it was not obligated to hold such a hearing before

issuing Green Theory’s license. Petitioners counter that the Board’s roll call hearing

at which the Board’s agent orally dismissed their protest satisfies the contested case

requirement because it was a trial-type hearing that was required by the Board’s

regulations and, even if it does not, such a hearing was required by the Constitution.

We agree with the Board that it was not required to hold a contested case

hearing before approving Green Theory’s application. We thus have no jurisdiction

to review this petition for review, and we therefore dismiss it.

I. Background

We begin by summarizing the District’s medical cannabis licensing regime as

it existed at the time of Green Theory’s application. A medical cannabis retailer

may operate in the District if it is licensed by the Alcoholic Beverage and Cannabis

Administration. D.C. Code § 7-1671.06(a)-(b). The District sets forth the

requirements for the licensing process by statute, which it has amended several

times. At the time of Green Theory’s application, the Medical Cannabis Amendment

Act of 2022 was in effect. That statute authorized unlicensed establishments like

Green Theory to legally enter the medical cannabis market by applying for a license

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with the Alcoholic Beverage and Cannabis Board. Id. § 7-1671.06a (2023). To be

eligible, the unlicensed applicant had to demonstrate, among other things, that it was

not located “[w]ithin 300 feet of a preschool, primary or secondary school, or

recreation center.” Id. § 7-1671.06a(a)(3)(A)(ii) (2023).

The Amendment Act also provided a mechanism for the public to provide the

Board with feedback on an unlicensed establishment’s application for a license.

Upon receipt of the application, the Board was obliged to “provide notice” to “all

Advisory Neighborhood Commissions in the affected ward for a 45-calendar day

public comment period.” Id. § 7-1671.06a(h)(1) (2023). The Act also set forth the

“grounds for a protest filed by an affected [ANC].” Id. § 7-1671.06a(i) (2023). If

“an affected [ANC]” filed a “timely protest,” the Board was then required to “hold

a contested case protest hearing” on the application. Id. § 7-1671.06a(h)(1)-(2)

(2023).

Green Theory applied for a license to operate a medical cannabis dispensary

at 4828 MacArthur Boulevard Northwest. On appeal, the parties do not

meaningfully dispute that the proposed location was more than 300 feet away from

any schools, as required by the Amendment Act. 2 But it was within 1,000 feet of

2

Although petitioners’ briefing asserts that Green Theory’s proposed location

was within 100 feet of the Little Ivies “preschool and childcare center,” it does not

address the Board’s finding that Little Ivies did not operate as a preschool under

5

several schools, which would leave Green Theory subject to heightened penalties

under the federal Drug Free School Zones Act, 21 U.S.C. § 860, though Green

Theory’s distribution would be federally prohibited regardless of where it took place,

id. § 841(a)(1) (It is unlawful “to manufacture, distribute, or dispense, or possess

with intent to manufacture, distribute, or dispense, a controlled substance.”).

After the local ANC declined to oppose Green Theory’s application, several

community members known collectively as the Wolverton Group—including

several parents of students attending, and school administrators at, nearby schools—

filed a written protest with the Board. The group argued that granting Green

Theory’s application would (1) negatively affect the peace, order, and quiet of the

area, (2) create congestion, and (3) violate federal law so that it could not be

approved consistent with the District’s Administrative Procedures Act. See id. § 860

(setting enhanced penalties for the distribution of controlled substances within 1,000

feet of public and private schools); D.C. Code § 2–510(a)(3)(A) (instructing courts

to set aside any agency action found to be “not in accordance with law”). Green

D.C. law and thus did not trigger the Amendment Act’s 300 feet buffer requirement,

which applies only to preschools, primary or secondary schools, and recreation

centers, D.C. Code § 7-1671.06a(a)(3)(A)(ii) (2023), but not to other “child-centered

business[s] or daycare[s].” Before this court, petitioners develop no argument that

Little Ivies was in fact a qualifying preschool and instead focus their challenge on

the Board’s contravention of federal law given that Green Theory was located within

1,000 feet of several schools.

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Theory moved to dismiss the protest on the ground that only ANCs have standing

before the Board to protest applications for a medical cannabis retailer license.

Green Theory’s owner and several members of the Wolverton Group then

appeared at a roll call hearing regarding Green Theory’s application. The Board’s

agent took the name of each protester in attendance “to create a record to reflect

everyone who [was] present.” She then explained that only ANCs can file protests

against medical cannabis licenses and that the Board would be issuing an order to

dismiss the Wolverton Group’s protest. After some back and forth about the correct

interpretation of the relevant law, the Wolverton Group agreed to petition for

reconsideration.

The Board followed with a written order officially dismissing the Wolverton

Group’s protest for lack of standing. The Board reasoned that the statutory scheme

“only opens protests to [ANCs]” and excludes all others from challenging a medical

cannabis retailer license. The Wolverton Group filed motions for a stay and

reconsideration, which the Board denied. The Board issued a medical cannabis

retailer license to Green Theory. This petition for review followed.

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II. Analysis

Petitioners challenge the Board’s decision to dismiss the Wolverton Group’s

protest and approve Green Theory’s application for a medical cannabis retailer

license. While they raise several challenges on the merits of Green Theory’s

application, we must first address the threshold question of whether we have

jurisdiction to review the petition before us.

The District’s Administrative Procedures Act limits this court’s direct review

of agency actions to contested cases, meaning those in which there has been a

qualifying trial-type “evidentiary hearing . . . or at least an effort to obtain such a

hearing which the agency erroneously denied.” Auger v. D.C. Bd. of Appeals &

Rev., 477 A.2d 196, 205-06 (D.C. 1984); see also D.C. Code § 2-510(a) (“Any

person suffering a legal wrong, or adversely affected or aggrieved, by an order or

decision of the Mayor or an agency in a contested case, is entitled to a judicial review

. . . upon filing in the District of Columbia Court of Appeals a written petition for

review.” (emphasis added)). For a matter to be a contested case, the agency must

have been required to hold (1) “a trial-type hearing,” Powell v. D.C. Hous. Auth.,

818 A.2d 188, 193 (D.C. 2003), (2) “by the agency’s enabling statute, its

implementing regulations, or constitutional right,” Burkhardt, 198 A.3d at 188

(quoting Owens v. D.C. Water & Sewer Auth., 156 A.3d 715, 721 (D.C. 2017));

8

Donnelly Assocs. v. D.C. Historic Pres. Rev. Bd., 520 A.2d 270, 277 (D.C. 1987)

(even where an agency exercised its discretion to hold a trial-type hearing, the matter

is not a contested case in “[t]he absence of a statutorily imposed hearing

requirement,” or a regulatory or constitutional mandate requiring one).

The Board asserts that this was not a contested case because it was not

required by any statute, regulation, or constitutional right to hold a trial-type

evidentiary hearing prior to issuing Green Theory’s license. The Board maintains

that only affected ANCs have standing to protest medical cannabis retailer licenses

and compel a trial-type hearing. Petitioners counter that this was a contested case

because the roll call hearing at which the Wolverton Group briefly appeared and

learned their protest would be dismissed was a trial-type hearing required by the

Board’s regulations. In any event, petitioners argue that a trial-type hearing was

constitutionally required because they have a protected liberty interest in directing

the education and upbringing of their children, which the government may not

infringe without affording them due process through a proper hearing. Petitioners

claim that the Board’s decision to license Green Theory to operate a medical

cannabis dispensary in close proximity to their children’s schools implicates this

fundamental right by exposing their children to marijuana without their consent.

9

We agree with the Board that this was not a contested case so that we must

dismiss the petition for lack of jurisdiction without reaching the merits of petitioners’

claims. 3 Absent a timely protest from an ANC, no regulation, statute, or

constitutional mandate required the Board to hold a trial-type hearing before issuing

Green Theory’s medical cannabis retailer license.

Turning first to the Amendment Act, which governed the District’s medical

cannabis licensing regime at the time of Green Theory’s application, we discern no

requirement for a trial-type hearing under the given facts. By its express terms, the

Act required a “contested case protest hearing” only if “an affected [ANC]” filed “a

timely protest” with the Board. D.C. Code § 7-1671.06a(4)(h)(1)-(2) (2023).

Petitioners argue that the Act’s exclusive reference to ANCs does not preclude

standing for others who would be affected by the issuance of the license. But even

assuming without deciding that this reading of the statute is correct and the Board

was permitted to hear petitioners’ protest, that would not satisfy the contested case

3

Petitioners suggest that even if we lack jurisdiction, we may still review the

Board’s actions because petitioners have constitutional standing. This argument

conflates two separate threshold requirements—jurisdiction and standing. Although

a party must have constitutional standing in order to bring a case before this court,

Padou v. D.C. Alcoholic Beverage Control Bd., 70 A.3d 208, 211 (D.C. 2013), we

must also “have jurisdiction to hear the matter,” D.C. Appleseed Ctr. for L. & Just.,

Inc. v. D.C. Dep’t of Ins., Sec., & Banking, 54 A.3d 1188, 1199 (D.C. 2012).

Petitioners may have standing, but that alone does not confer jurisdiction that is

otherwise lacking on us.

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requirement, under which a trial-type hearing must be required by statute (or

regulation or constitutional right). Burkhardt, 198 A.3d at 188; see also Donnelly,

520 A.2d at 277 (noting that a statute’s “grant of discretionary authority” to an

agency to hold a hearing does not satisfy the contested case requirement). The

Amendment Act plainly requires a contested case hearing only upon receipt of an

ANC’s protest, which did not occur here.

Second, and moving on from the Amendment Act itself, petitioners persist

that the regulations implementing that Act required a trial-type hearing in the form

of the roll call hearing at which their petition was summarily dismissed. 4 See

Alcoholic Beverage and Cannabis Board, Notice of Third Emergency and Proposed

Rulemaking at 73 (Dec. 6, 2023) (A “roll call hearing” is “a non-adversarial

proceeding conducted by the Board or the Board’s agent, in which a list of

applications for a new or renewed license . . . and the protestants thereto, shall be

read to the public.”). In determining whether an agency proceeding qualifies as a

4

The Board implemented the Amendment Act through a series of emergency

regulations. See D.C. Code § 7-1671.13(a)(10) (authorizing the Mayor to adopt

rules governing, among other things, the “processes and procedures for holding

protest and enforcement hearings before the [Board]”); Mayor’s Order 2020-099, 67

D.C. Reg. 11453 (Sept. 30, 2020) (delegating the authority vested in the Mayor by

D.C. Code § 7-1671.13 to the Board). During the pendency of Green Theory’s

application, the Board’s Notices of Second, Third, and Fourth Emergency and

Proposed Rulemaking were all at varying times in effect. Since their relevant parts

are indistinguishable, we cite to the Third Notice, which was in effect from

December 6, 2023, until April 3, 2024.

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trial-type hearing, we look to whether “substantive due process protections such as

representation by counsel, cross-examination of adverse witnesses, fact-finding by

an impartial adjudicator, or any of the other accoutrements of a trial-type hearing”

are required. Powell, 818 A.2d at 193. Other indicia of a trial-type hearing include

“the right to obtain pre-hearing discovery[] and to make opening and closing

arguments.” Mathis v. D.C. Hous. Auth., 124 A.3d 1089, 1099 (D.C. 2015).

Petitioners contend that the Board’s regulations imposed several trial-type

processes and procedures on the roll call hearing so that it satisfies the contested case

requirement. They point to regulations authorizing the Board’s agent at the hearing

to “identify the parties with standing and the filed protest issues, if undisputed,” and

to accept and request written documentation from the parties. Notice of Third

Emergency and Proposed Rulemaking, supra, at 74. They also note that the relevant

regulations prohibited the parties from communicating ex parte with the Board’s

agent and required that the roll call hearing be “open to the public and transcribed

by a certified court reporter.” Id. at 75.

But these features of the roll call hearing do not come close to satisfying the

contested case requirement. In Singleton v. D.C. Department of Corrections, we

held that a trial-type hearing within the meaning of the “contested case” requirement

is a hearing that contains the “‘full panoply’ of trial-type procedural rights.” 596

12

A.2d 56, 57 (D.C. 1991) (quoting Wolff v. McDonnell, 418 U.S. 539, 556 (1974)).

The mere fact that some “procedural safeguards” are required by regulation does not

satisfy this test. Id. Although the Board’s regulations here imposed some minor

procedural restraints, they adopted none of the formal “accoutrements of a trial-type

hearing,” such as the right to confront adverse witnesses or obtain discovery, Powell,

818 A.2d at 193, and those regulations accurately characterized the hearing as “non-

adversarial,” Notice of Third Emergency and Proposed Rulemaking, supra at 73.

Because no statute or regulation required a contested case hearing, the

remaining question is whether the Constitution did. Powell, 818 A.2d at 192-93.

Petitioners advance two arguments as to why a trial-type hearing was

constitutionally mandated in this instance. First, they invoke the Due Process

Clause’s requirement of sufficient process before the government may interfere with

a protected liberty interest. They point to their fundamental right as parents to direct

the upbringing and education of their children, and argue that this right is implicated

when the government exposes children to marijuana by licensing a dispensary to

operate near schools. 5 Second, petitioners claim that denying them the right to a

5

Petitioners cursorily assert that the Board’s licensing decision implicates

several additional constitutional interests, each of which requires the government to

provide sufficient process before taking action that results in a deprivation.

Specifically, they claim to have protected property interests in their children’s

education and to be free of nuisances, and a liberty interest in their reputations, that

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trial-type hearing on the ground that only ANCs have standing to protest medical

cannabis retailer licenses would violate the Equal Protection Clause because

individual residents have standing to protest liquor license applications (provided

they meet other requirements), and there is no rational basis to treat liquor and

cannabis differently in this regard. We take each argument in turn.

The Fifth Amendment “imposes procedural requirements on the government,”

such as notice and the opportunity for a hearing, “before it deprives individuals of

protected interests.” Richard Milburn Pub. Charter Alt. High Sch. v. Cafritz, 798

A.2d 531, 541 (D.C. 2002); see also U.S. Const. amend. V (“No person shall be . . .

deprived of life, liberty, or property, without due process of law.”). “[T]o determine

whether a contested case hearing is constitutionally mandated” involves “a two-part

inquiry.” Richard Milburn, 798 A.2d at 541. “First, we must decide ‘whether the

asserted individual interests are encompassed within the Fifth Amendment’s

have all been adversely affected by the Board’s decision. We disagree. The issuance

of a license to Green Theory does not invade any of these rights. Though petitioners

advance, as a general principle, that an unlicensed dispensary can constitute a

nuisance in the District, they do not point to any specific property interest that has

been affected by the alleged nuisance. And while it is true that a child legally entitled

to a public education must be afforded notice and an opportunity to be heard before

that entitlement can be withdrawn, Durso v. Taylor, 624 A.2d 449, 455 (D.C. 1993),

Green Theory’s license to operate near local schools does not bear upon the right to

attend those schools. Nor can it be seriously argued that one’s proximity to Green

Theory imposes “such a stigma or badge of disgrace” as to trigger due process

protections. Wisconsin v. Constantineau, 400 U.S. 433, 436 (1971).

14

protection of “life liberty and property.”’” Id. (quoting Ingraham v. Wright, 430

U.S. 651, 672 (1977)). If so, the second step would require us to “determine what

procedures are required to satisfy due process.” Id.

We do not get beyond the first step because petitioners have failed to show

any constitutionally recognized liberty interest. Petitioners’ asserted interest is their

right to control the education and upbringing of their children. They argue that the

Board’s decision to license a medical cannabis retailer near their children’s schools

infringes this interest by forcibly exposing their children to marijuana.

While parents have a “constitutionally recognized ‘fundamental right . . . to

make decisions concerning the care, custody and control of their children,’” that

right is not implicated by the Board’s discrete licensing decisions for businesses near

their children’s schools. W.H. v. D.W., 78 A.3d 327, 341 (D.C. 2013) (quoting

Troxel v. Granville, 530 U.S. 57, 66 (2000) (plurality opinion)). The fundamental

right to direct the upbringing and education of one’s children is violated by direct

government interference with parental autonomy, such as compulsory education

laws and other mandates that compel specific parental choices. See, e.g., Pierce v.

Soc’y of the Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510, 530, 534-35

(1925) (striking down law that required parents to send children to public school);

Troxel, 530 U.S. at 71-73 (holding it unconstitutional to disregard mother’s wishes

15

and order her to allow one weekend of visitation per month to child’s grandparents);

cf. Mahmoud v. Taylor, 606 U.S. ---, 2025 WL 1773627, slip op. at *5 (June 27,

2025) (upholding free exercise challenge to public school curriculum that

“impermissibly burdens . . . religious exercise” absent a parental opt-out policy). By

contrast, the Board’s decision to license a medical cannabis retailer near some

schools does not compel any parental action, and we decline to hold that parents

have a constitutional right to impose their public policy preferences on the District’s

licensing decisions simply because there may be some downstream, incidental

effects on their children.

Petitioners’ argument under the Equal Protection Clause also fails. It is true

that, at the time of Green Theory’s application, the District’s liquor licensing regime

explicitly conferred standing to protest the issuance of a license to a broader range

of parties than the Amendment Act did, including to groups of at least five “residents

or property owners” provided that they shared “common grounds for their protest.”

See D.C. Code § 25-601(a)(2). But the disparate treatment of protesters in the

Amendment Act, conferring contested case requirements only when an affected

ANC raises a protest, does not raise any equal protection concerns. That is because,

as petitioners concede, the Council’s disparate treatment of medical cannabis and

liquor licenses does not implicate any fundamental right or suspect class and is

therefore subject only to rational basis review. Frazier v. D.C. Dep’t of Emp. Servs.,

16

229 A.3d 131, 141 (D.C. 2020). Under this deferential standard of review, a law “is

constitutionally valid so long as the challenged classification is rationally related to

a legitimate governmental purpose.” Id. (quoting Tucker v. United States, 708

A.2d 645, 647 (D.C. 1998)). This is not a high hurdle, and we have little trouble

conceiving of several rational bases for the Council’s choice to be more restrictive

with who is entitled to protest medical cannabis licensing. See id. (a statute will

fail rational basis review only if there is “a clear showing of arbitrariness and

irrationality” and every “conceivable basis” for the classification is negated).

First, it is rational enough to think that cannabis has legitimate medicinal

purposes that alcohol does not, so the District’s interests in providing its residents

with needed medicinal options could warrant streamlining the licensing process.

Indeed, one of the Council’s stated purposes in passing the Amendment Act was to

“provide relief to patients . . . and people from marginalized communities who have

been previously excluded from the medical cannabis market.” See Medical

Cannabis Amendment Act of 2022, Report on Bill No. 24-113 before the Committee

on Business and Economic Development, Council of the District of Columbia, at 14

(Nov. 29, 2022). Second, the Council might have rationally viewed medical

cannabis as more controversial than alcohol, so that limiting protests to affected

ANCs was a rational way to avoid an excessive number of protests that could

overwhelm the Board’s administrative capacity. Third, in passing the Amendment

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Act the Council was expressly trying to keep pace with the emergent cannabis

markets in neighboring jurisdictions, so that it was rationally prioritizing the

development of an emerging competitive market in the District by simplifying the

licensing process. See Medical Cannabis Clarification and Program Enforcement

Amendment Act of 2024, Report on Bill No. 25-581 before the Committee on

Business and Economic Development, Council of the District of Columbia, at 2 (July

3, 2024) (describing how the Council sought to “finetune” its cannabis licensing

regime so as to “remain competitive with Maryland’s medical cannabis program”

when it passed the Amendment Act). Those are all rational reasons, individually

and in combination, to restrict who was entitled to protest these licenses.

Since petitioners had no right to a trial-type hearing under any statute,

regulation, or constitutional right, this was not a contested case, and we therefore

lack jurisdiction and must dismiss their petition. Contrary to petitioners’ contention,

our decision does not leave the District’s residents without any recourse to challenge

licensing decisions if their local ANC fails to file a protest. “A party aggrieved by

an agency action in a non-contested case ordinarily may seek review in the Superior

Court.” R.O. v. Dep’t of Youth Rehab. Servs., 199 A.3d 1160, 1165 (D.C. 2019).

Petitioners elected to file their petition for review directly in this court, and that

choice subjected them to the strictures of the contested case requirement, which they

do not satisfy.

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III. Conclusion

For the foregoing reasons, the petition for review is dismissed.

So ordered.