The proposal, which the ANC voted to approve in May, asks the ABC board not to extend its moratorium on new liquor licenses in the area. The proposal also asks that the board renew its moratorium on new nightclub liquor licenses in West Dupont Circle for another three years.
During the hearing, which occurs at 2000 14th Street NW next Wednesday at 10 a.m., locals will be able to share their thoughts on ending the moratorium.
Residents who want to comment at the hearing should contact ABRA General Counsel Martha Jenkins by 5 p.m. next Monday with their full name, title and organization, if applicable.
Public comment may be limited to five minutes in order to allow every person an opportunity to be heard. ABRA advises that those wanting to weigh in should bring nine copies of their testimony.
(Updated at 10:24 a.m. on Tuesday) Madam’s Organ has a message for the Alcoholic Beverage Control (ABC) Board: “Rescind the fart fine.”
That’s what the Adams Morgan bar wrote in a new MoveOn petition launched today.
Last month, the bar was fined $500 by the ABC Board after a yearlong investigation revealed it violated a settlement agreement by leaving its windows open while a live band played there in 2014.
The reason for opening the window, explained Madam’s Organ owner Bill Duggan in June, was that the live band’s drummer “opened the window to let [a] fart out.”
“People get stabbed and shot in these other establishments,” continued Duggan. “In ours, someone farts and cracks a window and they spend a year on it.”
Now, Madam’s Organ is pushing back.
“To show the ABC Board there is no public support for their ridiculous ruling and waste of taxpayer money in a year long investigation, hearings and appeals, we created a petition,” wrote Madam’s Organ office manager Tucker Ewing in an e-mail to Borderstan.
The new petition, says Duggan, is an attempt at bringing awareness to what he sees as meddling by the D.C. government.
“Seems ridiculous that the government has everyone from the assistant attorney general on down sign off on a fart fine,” Duggan says.
This isn’t the bar’s first attempt to convince the ABC Board to take back its fine.
On June 29, Madam’s Organ formally filed a request to ask the board to reconsider its decision, but the ABC Board rejected the request in a wordy response letter.
“[Madam’s Organ] asserts that the Board erred as a matter of law by finding that Madam’s Organ’s conduct violated its settlement agreement because the agreement, when broadly construed, would permit the opening of the window in this case,” wrote the ABC Board.
“[Madam’s Organ’s] argument is bloated,” continued the board. “No evidence is proffered to show that the parties to the settlement agreement contemplated the gastrointestinal challenges of employees, the controversies inherent in any culinary selections, or indeed any concern for the olfactory assaults on the patrons that the establishment attempted to avoid.”
In other words, settlement agreements seem to supersede stinky smells.
Though the ABC Board has said it will not reconsider the fine, Madam’s Organ could still appeal the board’s decision with the District of Columbia Court of Appeals.
Photo via flickr/Adam Fagen
From David McAuley. Email him at david[AT]borderstan.com.
How much significance can you put into questions and remarks by government officials at a public hearing?
That’s the big question as DC’s Alcohol Beverage Control (ABC) Board held its public hearing about the proposed 14th and U Liquor License Moratorium yesterday afternoon, May 22, at the stifling and sweaty Reeves Center (14th and U Streets NW).
The familiar forces repeated their arguments for and against the proposal, with moratorium petitioner Shaw Dupont Citizens Alliance joined by its friends and supporters on one side, and representatives of the four Advisory Neighborhood Commissions (ANCs) that had voted against the moratorium, and their supporters, on the other.
Members of the ABC Board posed questions and made statements to local residents testifying about the proposed moratorium. Like reporters observing Supreme Court Justices questioning lawyers about Obamacare, observers were left to wonder how much the Board members’ questions foreshadowed its future decision.
ABC Board chair Ruthanne Miller and Board member Mike Silverstein are representatives of Wards 3 and 2, respectively, on the seven-member board. Questions and statements made by these members indicated they were not immediately ready to approve a new moratorium. However, the two other attending members of the board — Donald Brooks (Ward 1) and Nick Alberti (Ward 6) — did not participate as actively in the discussions, giving no clue to their inclinations.
Skeptical on Non-liquor Business Crowd-Out
For example, several supporters of the moratorium said the proliferation of bars and restaurants in the U Street area was driving out other types of business. In reply, Miller said she knew the neighborhood had furniture stores, pharmacies, and many other types of businesses.
“Lots of your neighbors would love to have what you have,” Miller said.
Addressing the same point, Silverstein said, “There are going to be economic dislocations no matter what you do.”
ABC Board Improvements
During testimony, a moratorium advocate remarked ANC 2B/Dupont‘s anti-moratorium resolution had criticized the ABC Board’s administrative branch, the Alcoholic Beverage Regulatory Agency, and called for greater transparency. This seemed an attempt to place moratorium advocates and the ABC Board on the same sides of the argument, arrayed against ANC 2B and moratorium opponents.
Miller had the resolution found and the relevant portions read.
At the end, she said, “Is that all? I’d like to see ways in which the ABC can be improved.”
Silverstein: Popular on Twitter
At another time, according to Twitter, Silverstein said the U Street neighborhood had said the moratorium “seems to come out of the factory of bad ideas”.
Another Twitter post noted that Silverstein had called U Street “a place the US President can take the President of France” for a chili dog. In the same breath, however, Silverstein also characterized U Street as a place where someone can throw up on your shoes, according to another Twitter post.
Last Chance for Public Comment
There is still time to submit written comments according to an ABC Board announcement:
“If you are unable to testify and wish to comment, written statements are encouraged and will be made a part of the official record. Copies of written statements must be submitted to the Office of the General Counsel, Alcoholic Beverage Regulation Administration, 2000 14th Street NW, Suite 400 South, Washington, D.C. 20009, no later than 4 pm on Friday, May 24, 2013.”
From David McAuley. Email him at david[AT]borderstan.com.
DC’s Alcoholic Beverage Control (ABC) Board will hold a hearing on the proposed 14th and U liquor license moratorium at 1:30 pm on Wednesday, May 22, at the Reeves Municipal Building. The Reeves Building is at the northwest corner of 14th and U Streets NW. The hearing will take place in the Board Hearing Room, 4th Floor South.
The official announcement was published on March 29 in the DC Register, Volume 60, Number 14. A copy of the official announcement is available on Borderstan. Public comment in person or in writing is solicited.
Details of Announcement
Details from the announcement:
“Individuals and representatives of organizations who wish to testify [in person] should contact Assistant Attorney General Jon Berman at 202-442-4448 or by e-mail at [email protected] by Friday, May 17, 2013. E-mail contacts should include the full name, title, and affiliation, if applicable, of the person(s) testifying. Testimony may be limited to five (5) minutes in order to permit each person an opportunity to be heard. Witnesses should bring seven (7) copies of their written testimony to the hearing.
“If you are unable to testify and wish to comment, written statements are encouraged and will be made a part of the official record. Copies of written statements must be submitted to the Office of the General Counsel, Alcoholic Beverage Regulation Administration, 2000 14th Street NW, Suite 400 South, Washington, D.C. 20009, no later than 4:00 p.m. on Friday, May 24, 2013.”
The announcement erroneously implies that there are two petitioners for the moratorium, the Shaw Dupont Citizens Alliance (SDCA) and the Residential Action Coalition. The SDCA was the only petitioner granted standing to plead the case for a liquor license moratorium before the ABC Board.
Assistant Attorney General Berman said at a March 20 listening session about the moratorium that the Residential Action Coalition had not qualified for standing and would no longer be considered a petitioner at future hearings.
The District has new liquor licensing laws, or Alcoholic Beverage Control (ABC) regulations.
In December, the DC Council met to to take the first vote on a controversial bill addressing liquor licensing for local businesses, and residents’ roles in the process. The legislation was approved by the Council on December 18, and this week, DC Mayor Vincent Gray singed the reforms into law.
Some highlights inthe bill:
- Liquor stores are now allowed to open and sell on Sundays.
- Grocery stores and pubs can now sell 64-ounce growlers of beer, DCist reports.
- The new bill guarantees that placards for new business applications will now additionally include a pre-determined and set date for the license protest hearing to accelerate the process, DC Hospitality reports.
- All ABC Board rulings must now be issued within a maximum 60 days, rather than the previous 90 days, DC Hospitality reports.
- The proximity requirement for “Gang of 5” members was eliminated. Any “Gang of 5” license protests are automatically dismissed if the applicant reaches an agreement with the applicable ANC. However, the provision for the “Gang of 5″ members protesting a liquor license application or renewal live within a 400-foot radius around an establishment was taken out of the bill. (See DC Liquor Board Reaffirms Hank’s Oyster Bar Decision and Poll: Most Readers Say 5 People Not Enough to Protest Liquor Licenses).
- In addition, “Voluntary Agreements” were replaced with the new title of “Settlement Agreements.” They are neither a requirement of licensing or an instrument by which to force concessions from licensees as part of that process. Instead, the Settle Agreements are an optional opportunity for parties to resolve a license protest.
“As a practical matter, the newly expedited and statutory timeframes for protest hearings and rulings removes the power of protest groups or ANCs to utilize the threat of delay to compel operating concessions,” said Mark Lee of DC Hospitality and a business columnist for the Washington Blade
For more information on the number of businesses in the area affected by the reforms, read DC Council Takes First Vote on Liquor Licensing Reform Bill.
On Tuesday the DC Council met to to take the first vote on a controversial bill addressing liquor licensing for local businesses, and residents’ roles in the process. Many issues were on the table regarding liquor licensing, including how long it takes to obtain a license and who can squash it.
The legislation came before the Council following work done by a large task force headed by Councilmember Jim Graham (D-Ward 1). What did happen on Tuesday?
- The Council passed a provision to get rid of any “Gang of 5” license protest if a venue applying for a license reaches agreement with Advisory Neighborhood Commission (ANC) — essentially giving an ANC first standing in liquor license protests.
- According to Tim Craig, reporter for The Washington Post, the council defeated Councilmember Cheh’s amendment,which strengthened the ability of five or more residents to protest a neighborhood liquor license. Graham, Orange, Barry, Graham Brown, Evans and Wells voted against the amendment. Alexander, Bowser, Cheh, McDuffie and Mendelson voted for it.
- The requirement that “Gang of 5” members protesting a liquor license application or renewal live within a 400-foot radius around an establishment was taken out of the bill. (See DC Liquor Board Reaffirms Hank’s Oyster Bar Decision and Poll: Most Readers Say 5 People Not Enough to Protest Liquor Licenses).
- D.C. Hospitality reports that the Council also approved a measure that requires the city’s Alcoholic Beverage Control (ABC) Board to act on licensing applications in a quicker time frame — of great importance to businesses that are essentially waiting to open pending approval of a liquor license.
- And as Dcist reports, sometime next year, liquor stores will be able to open for business on Sundays.
The final vote on the bill is scheduled for Tuesday, December 18.
Large Number of Licenses in Area
There are 1,586 liquor licenses of all types in DC, according to the DC Alcoholic Beverage Regulation Administration (ABRA). The battles over liquor licenses in the Dupont, Logan and U Street neighborhoods are more easily put into perspective when you look at the numbers — what wards, ANCs and areas have the most liquor licenses. Statistics from ABRA show how dominant our locales are in the ranks of DC’s watering holes: Ward 2 (Dupont-Logan) is home to 40% of all the city’s liquor licenses, followed by Ward 1 (which includes most of the U Street corridor) with 16%. In third place is Ward 6 (Capitol Hill) with 15%. It’s important to point out that Ward 2 includes Georgetown, in addition to Dupont-Logan and areas south of Dupont Circle. Ward 1 also includes Adams Morgan and Columbia Heights. Other DC Wards: Ward 3 has about 11% of all licenses; Ward 5 has 7%; Ward 4 has 6%; Ward 7 about 3%; and Ward 8 about 2.5% of all the city’s liquor licenses.
Licenses in Local ANCs
A look at number of licenses by Advisory Neighborhood Commission level is more revealing. ANC 2B/Dupontis home to 14.44% of all liquor licenses in the city (229) — keep in mind that the boundaries of ANC 2B extend well south of Dupont Circle and reach Pennsylvania Avenue at some points. (See DC Liquor Licenses by the Numbers: Ward 2, 40% and Ward 1, 16%.)
ANC 2F (Logan Circle and a big chunk of 14th Street NW) has 111 liquor licenses, about 7% of the city’s total. ANC 1B has 91 licenses, about 6% of all licenses in DC — 1B includes the U Street corridor and large swath of territory to the north plus Howard University. Together, these three ANCs are home to 431 of 1,586 licenses, about 27% of the city’s total. Throw in ANC 2C/Shaw and you have another 7% of all liquor licenses in DC. How many are in ANC 1C, home to Adams Morgan? That ANC has 84 licenses, about 5% of all the DC liquor licenses.
The exact numbers are as follows:
|ANC||# ABC Licenses||% of All DC Licenses|
|ANC 1B (U Street corridor and Columbia Heights)||91||5.74%|
|ANC 2B (Dupont Circle)||229||14.44%|
|ANC 2F (Logan Circle)||113||7.12%|
|ANC 2C (Shaw)||111||7.00%|
The DC Council will hold a July 12 hearing on proposed changes to DC liquor licensing. The new bill, scheduled to be introduced at the hearing, is sponsored by Councilmember Jim Graham (D-Ward 1) and co-sponsored by Councilmembers Jack Evans (D-Ward 2) and Yvette Alexander (D-Ward 7).
Recent licensing battles in the neighborhood, such as those with Hank’s Oyster Bar and All Souls, have caused quite a stir and have produced numerous opinions from local residents. That is why the local organization is encouraging residents to support new regulations that change the licensing process.
Currently, groups of at least five or more people can protest the licenses of local establishments and cause lengthy delays in the approval process or force businesses to sign restrictive Voluntary Agreements (V.A.’s) in order to move forward. Advisory Neighborhood Commissions, the Metropolitan Police Department and community organizations (with a formal membership vote) can also protest license applications and be parties to V.A.’s.
This new bill, however, changes the proximity requirement for protest groups, requiring protestors to live or own property within a 400-foot radius from the business, instead of the current 600-foot regulation, among other changes.
The hearing starts at 11 am, and will take place in room 412 of the John A. Wilson Building, 1350 Pennsylvania Avenue NW. Anyone wishing to speak at the hearing must be added to the witness schedule. To do this, contact Malcolm Cameron at mcameron[AT]DCCouncil.com or (202) 724-8191.
Last week we asked readers to take a poll on the extent to which neighbors should be able to control the liquor licenses of local businesses. The results are in, and 80% of you said, “No, it should be more than five people,” while 9% of survey respondents said that “Yes” five neighbors is enough to warrant the protest of a liquor license before the ABC Board. The Other option (with comments) was selected by 10% of respondents, with details below.
After all, it’s already been a heated summer between local establishments and the city’s Alcoholic Beverage Control (ABC) Board. (Read our recent posts on All Souls and Hank’s Oyster Bar. You can also review the current DC laws and regulations for liquor licensing in the city.)
Currently, just five residents living up to 600 feet away from a restaurant or bar with a liquor license can bring a case to the city’s ABC Board, and ask to negotiate a Voluntary Agreement (V.A.). These are used to set certain limitations on the business, often to limit hours of operations as well as outdoor seating. (See page 180 of the DC code.)
This contentious law enables some neighbors to fight to maintain what they consider the a certain quality of life. At the same time, the process can also obstruct local businesses — even if the overwhelming majority of surrounding residents approve or simply don’t mind.
So we asked readers, should just five residents have this power to bring cases to the city’s ABC Board, or should that number be increased? Interestingly, about 10% of respondents selected “Other” response for their answers. Here is a summary of what these respondents said. Most thought protests and V.A.’s should only be between businesses and governmental bodies:
- Only ANCs (Advisory Neighborhood Commissions) and/or local government organizations should be able to bring a case to the ABC Board.
- Business owners should enter into Voluntary Agreements (VAs) with a public entity, not private complaints, such as ANCs or the Metropolitan Police Department.
- The number of people filing a complaint should be dependent on the population density of the neighborhood. For example, if only five people live in the vicinity of the license applicant/holder, then a complaint is warranted — but if only five people out of hundreds or thousands living within 600 feet of the business, then they should not be allowed to protest the license.
This past week the troubles surrounding All Souls dwindled, while the drama overwhelming Hank’s Oyster Bar continued. An online petition in favor of Hank’s was posted on June 18 and has already received about almost 1,700 signatures.
The petition calls on the Alcoholic Beverage Regulation Administration Director Fred Moosally, Ward 2 Councilmember Jack Evans, Ward 1 Councilmember Jim Graham and and DC Mayor Vincent Gray to change the law and end the ability of a small number of residents to hold up liquor licensing.
News of licensing agreements about local businesses and the city’s Alcoholic Beverage Control (ABC) Board has been rocking area websites and newsfeeds for more than a week. Hank’s Oyster Bar, a local restaurant just off the 17th Street corridor, was forced to shut down half of its outdoor patio on June 8 due to a pending review of an ABC Board decision approving termination of the Voluntary Agreement (V.A.) with six area residents; two of the original six protestants filed the appeal. The hearing was held last Wednesday, but nothing has resulted (as of yet) from the battle between a handful of local residents and the local business.
Reader Poll: What’s your opinion? Should a minimum of five residents or property owners be allowed to file a protest against liquor license application that then goes before the city’s Alcoholic Beverage Control Board — or should that number be increased? Take our reader poll. We will share the results early next week.
That’s the law in DC: At present, a minimum of five residents or property owners (three if it is a liquor license moratorium zone) living up to 600 feet away from a restaurant or bar with a liquor license can file for a Voluntary Agreement (V.A.) with an establishment — for reference, a football field is 360 feet long.
Residents — as well as neighborhood associations and Advisory Neighborhood Commissions — can also protest a pending liquor license application, and then the establishment must reach an agreement with the group or groups. (Hank’s is located in the Dupont East Moratorium Zone.)
V.A.’s are often used to limit hours of operation or specify how outdoor dining areas are used. There may also be other requirements that the bar or restaurant must agree to follow to obtain the liquor license. (See details below.)
Since the closure of half its patio at 1624 Q Street NW, Hank’s has procured the support of local businesses and organizations, including the Restaurant Association of Metropolitan Washington (RAMW), the Urban Neighborhood Alliance (UNA) and the Gay and Lesbian Activists Alliance (GLAA). Furthermore, an online petition in favor of Hank’s was posted on June 18 and has already received about more than 1,200 signatures.
The petition, started by Mary Tucker, calls on the Alcoholic Beverage Regulation Administration Director, Fred Moosally; Ward 2 Council Member, Jack Evans; Councilmember and ABC Committee Chair, Jim Graham; and DC Mayor Vincent Gray to end the ability for a small number of residents to hold up liquor licensing.
DC Code Spells Out Protest Rules
If you want to dive into the weeds, Title 23, Chapter 16 of the DC Code stipulates the rules for filing a protest against a liquor license. The specifics on who can protest are in Title 25, Chapter 6:
§ 25-601. Standing to file protest against a license
The following persons may protest the issuance or renewal of a license, the approval of a substantial change in the nature of operation as determined by the Board under § 25-404, a new owner license renewal, or the transfer of a license to a new location:
(1) An abutting property owner;
(2) A group of no fewer than 5 residents or property owners of the District sharing common grounds for their protest; provided, that in a moratorium zone established under § 25-351 (or in existence as of May 3, 2001), a group of no fewer than 3 residents or property owners of the District sharing common grounds for their protest;
(3) A citizens association incorporated under the laws of the District of Columbia located within the affected area; provided, that the following conditions are met:
(A) Membership in the citizens association is open to all residents of the area represented by the association; and
(B) A resolution concerning the license application has been duly approved in accordance with the association’s articles of incorporation or bylaws at a duly called meeting, with notice of the meeting being given at least 10 days before the date of the meeting.
(4) An affected ANC;
(5) In the case of property owned by the District within a 600-foot radius of the establishment to be licensed, the Mayor;
(6) In the case of property owned by the United States within a 600-foot radius of the establishment to be licensed, the designated custodian of the property; or
(7) The Metropolitan Police Department District Commander, or his or her designee, in whose Police District the establishment resides.
There is now an online petition supporting Hank’s Oyster Bar, and owner-chef Jamie Leeds, in its dispute with a hand full of protestants over its outdoor patio space and Voluntary Agreement (V.A.). The name of the petition is “Alcoholic Beverage Regulation Administration: Rule in Favor of Hank’s Oyster Bar Dupont Circle.” The peititon is to Alcoholic Beverage Regulation Administration Director Fred Moosally; Ward 2 Council Member Jack Evans (D-Ward 2); Councilmember Jim Graham (D-Ward 1) and ABC Committee Chair; and DC Mayor Vincent Gray.
Hank’s V.A. was with six protesters who live in the general vicinity of the restaurant on Q Street just off 17th Street NW. Hank’s was allowed to terminate its V.A. in November 2010, but in May the District of Columbia Appeals Court remanded the ruling back to the Alcohol Beverage Control (ABC) Board. The hearing on the case was June 13; the ABC Board has up to 90 days to rule. The Alcoholic Beverage Regulation Administration (ABRA) is the agency that oversees DC liquor laws. The ABC Board, composed of mayoral appointees, makes decisions on cases. Only two of the original six protesters were party to the appeal to the court.
The petition was created at change.org and organizers are aiming for 5,000 signatures. Late last week the Restaurant Association Metropolitan Washington (RAMW) called on supporters to back Hank’s. Last week, Leeds posted a letter on her restaurant door, website and Facebook page asking for community support.
From Rachel Nania. Check out her blog, Sear, Simmer & Stir. Follow Nania on Twitter @rnania, email her at rachel[AT]borderstan.com.
A local restaurant’s seven-year battle with a group of local residents over “Voluntary Agreements” is causing one area organization to encourage DC Councilmember, Jim Graham (D-Ward 1), to include reform of the District’s alcohol licensing approval process for restaurants and bars in legislation he is currently drafting for Council consideration.
In response to the current deliberations over liquor licensing at Hank’s Oyster Bar, The Restaurant Association of Metropolitan Washington (RAMW) calls on Graham to do away with ad hoc committees when dealing with restaurant operations and licensing agreements.
Instead, RAMW recommends a more appropriate neighborhood forum for licensing review and input, such as the Advisory Neighborhood Commission (ANC), elected by area residents.
Current law allows ad hoc groups of as few as five people to intervene in the city’s liquor licensing application review process. “Allowing only a handful of residents to protest a liquor license application results in lengthy delays in review by the ABC Board causing great hardship for local businesses,” said Lynne Breaux, president of RAMW.
According to RAMW, Graham recently convened an “ABC Working Group” of both community and business representatives to review regulatory issues and problems in the city’s alcohol licensing process. The group concluded its extensive six-month evaluation on May 3, and Graham conducted a Council committee hearing on May 8 to review the group’s report.
“Although the recommendations of the broad-based group assembled by Council member Graham include several sensible recommendations, the proposals do not go far enough in correcting the ability of small and unrepresentative groups to hold business owners hostage by threat of long and costly delays,” said Breaux who’s organization was represented on Graham’s committee.
Breaux feels that unless the city council changes its laws, local business owners will continue to face protests by small groups that affect business development and often contradict the opinion of a majority of local residents.
Reforming liquor licensing isn’t the only thing on the minds of residents and industry organizations. Some DC business owners and residents are hoping that the six-day-spirit-city extends liquor sales into Sunday. And in a city home to a large percentage of drinkers, selling liquor seven days a week seems like a sure-fire way to increase sales for local business owners.
But like the Hank’s Oyster Bar case, liquor sales on Sundays in the nation’s capital is held up by a small, vocal minority. Ironically enough, it’s the sellers, themselves.
According to a recent Reason.com article, District liquor storeowners argue that they don’t want to work on Sundays, and that Sunday sales will simply increase their costs while cutting into sales on other days. However, as the article points out, considering most people in DC live about 30 minutes from both Maryland and Virginia (both of which sell liquor on Sundays), sales tax projections and profits would be a win-win for businesses and for the District.
From Tom Hay. Questions for Tom? Send him an email at Tom[AT]borderstan.com. You can follow him on Twitter @Tomonswann.
The hearings on the widely reported Hank’s Oyster Bar saga got underway Wednesday afternoon and were still proceeding well into the evening as this story is written. The final outcome could be weeks away for Hank’s ever-patient chef and owner Jamie Leeds, who thought her troubles were behind her when she successfully expanded her popular Dupont Circle restaurant in 2011, despite a protest from a group of six neighborhood residents.
The November 2010 Alcoholic Beverage Control Board (ABC Board) decision allowing the termination of a neighborhood voluntary agreement (V.A.) and ultimate expansion of Leeds’ restaurant was appealed to the DC Court of Appeals by two of the six original protesters (David Malloff and Lex Rieffel). The Court ruled that the ABC Board erred in its order allowing termination, so the case was remanded the back to the Board. The Board now has 90 days to issue an order. The uniqueness of the case and public outcry in support of Leeds’ situation raises hope for faster action from the ABC Board.
Things began to heat up this past weekend when the ABC Board ordered the restaurant to close half of the venue’s outdoor seating, reducing the outdoor dining space from 40 seats to 20. The Friday shutdown occurred without prior notification on a the review of an ABC Board decision approving termination of the Voluntary Agreement (V.A.) with six area residents. Two of the six residents, David Malloff and Lex Rieffel, appealed the V.A. termination and the District of Columbia Court of Appeals kicked the case back to the ABC Board.
At that point Leeds went public, asking the community for support by emailing and calling DC councilmemers, the mayor and the head of the city’s Alcoholic Beverage Regulation Administration. In response, several local organizations supported Leeds.
Criteria for Termination of the V.A.
At issue in the case are the criteria for termination of a V.A. The appellate court decision said the ABC Board must meet three statutory subparagraphs for termination of a V.A. The original ABC Board order only met criteria (C). The three criteria are:
(A) The applicant (Hank’s/Leeds) seeking the amendment has made a diligent effort to locate all other parties to the voluntary agreement; or (ii) If non-applicant parties are located, the applicant has made a good-faith attempt to negotiate a mutually acceptable amendment to the voluntary agreement;
(B) The need for an amendment is either caused by circumstances beyond the control of the applicant or is due to a change in the neighborhood where the applicant’s establishment is located; and
(C) The amendment or termination will not have an adverse impact on the neighborhood where the establishment is located as determined under § 25-313 or § 25-314, if applicable.
Early in the hearing ABC Board Chair Ruthanne Miller made it clear that on remand from the Court of Appeals the Board must make findings on paragraphs (A) and (B) and any effort to have the case dismissed would be inconsistent with the decision of the Court of Appeals. At the time of the 2010 order the ABC Board had been chaired by Charles Brodsky.
Dupont East Liquor License Moratorium
Leeds’ representative, Andrew Kline, first called Advisory Neighborhood Commissioner (ANC) Jack Jacobson (2B04) as a witness. Jacobson detailed the 2009 ANC review of the Dupont East liquor license moratorium and its recommendation to allow for two lateral expansions. Later Jamie Leeds was called as a witness and detailed the timeline of how she saw the opportunity to expand her operation. Kline argued that this easing of the moratorium, the rezoning of adjacent space next to Hank’s and the restaurant’s success met the conditions of subparagraph (B).
For the criteria in subparagraph (A), Kline presented a letter and email correspondence from February 2010 to his last witness, David Mallof, one of the original signatories to the V.A. The correspondence stated that Leeds desired to expand her business and wanted to meet with the protesters.
Under questioning by Kline about efforts to reach out to the parties to the V.A., Mallof argued that the email chain had been “cherry-picked” and that he had several phone conversations with Kline about Hanks’s. Mallof also explained that he was somewhat confused about the expansion plans and thought perhaps Leeds wanted to expand into the Trio space at the corner of 17th and Q Streets NW. He further explained that he wanted some sort of proposal or Powerpoint presentation with “meat on the bones” before coordinating a meeting — and had concerns with a suggested weekday meeting during business hours when residents might not be available. ABC Board members questioning of Mallof suggest they did not fully understand why a meeting did not occur despite overtures from Leeds.
Leeds has previously stated, and did so again yesterday, that she felt compelled to sign the V.A. in order to open her restaurant, noting that she would otherwise have had to wait approximately six months for a hearing to resolve the original demands by the protest group; the wait would have been extremely costly for Leeds. At the time she agreed to the terms of the V.A., the liquor license moratorium on 17th Street prevented Leeds from potentially expanding her business. However, when the Dupont East Liquor License Moratorium was later amended to allow for a limited number of “lateral expansions” for existing restaurants; Leeds said she then initiated a request to review the restrictions in the V.A. with the group of six protestants with whom she had signed the V.A.
(Note: I was unable to stay until the end of hearing, which began at 4 pm and did not conclude until 8:30 pm.) According to additional sources who stayed for the entire hearing, witnesses for the protestants who appealed the termination of the V.A. said that their reluctance to meet with Leeds was due to her failure to detail in advance of their agreeing to meet exactly what changes she hoped to make to the business, i.e., the expansion into the adjoining space to the east.
Mallof, plus one of the original protestants, conceded in their sworn testimony that they understood that Leeds hoped to expand to an adjoining space, as informed by correspondence at the time from Leeds’ attorney, but claimed to be confused as to whether this meant an expansion to the adjoining vacant space rezoned for commercial use or whether Leeds planned to take over the Trio restaurant building next door. They also acknowledged their understanding that the expansion would naturally require an increase in the capacity for the restaurant, necessitating a change to the seating limit specified in the V.A.
The big question now is when will the ABC Board reach a decision? Will Leeds and Hank’s Oyster Bar have to operate under the original V.A., or will the ABC Board be able to rule that its original decision to release Leeds from the V.A. was valid, based on the presentation of new evidence at the Wednesday hearing? The Board has up to 90 days to reach a decision.
In a statement released over the weekend, Hank’s Oyster Bar said that its restaurant at 17th and Q NW was informed by Alcoholic Beverage Control (ABC) Board investigators on Friday evening, June 8, that the establishment would be required to shut down operation of half of its outdoor dining patio pending review of a prior ABC Board decision approving termination of a Voluntary Agreement (V.A.) with six area residents.
According to the statement released by Hank’s, “The sudden and unexpected order came without prior notification and in advance of an ABC Board hearing on the matter scheduled for Wednesday, June 13. The visit by agency investigators came in response to complaints by the small group of original licensing objectors.”
Appeal for Community Support
Hank’s owner and Chef Jamie Leeds also posted an appeal for public support on the restaurant’s website and Facebook page. Leeds is asking neighbors and supporters to contact government officials in support of Hank’s pending review before the ABC Board on June 13 (details below).
However, there is no guarantee that a ruling will come quickly and the issue could be costly for Leeds. She told Borderstan in October 2010 that she had already spent $40,000 to $50,000 in legal fees related to the liquor license, V.A. and plans to expand into the space next door.
“Although the appeals court had issued the ruling over three weeks ago, no directive had been issued by either the court or the city requiring any action by the restaurant pending city agency review,” according to the statement from Hank’s. While the V.A. was with six signatories, only two of the original signatories filed the appeal, according to a spokesperson for Hank’s — David Malloff and Lex Rieffel; neither live adjacent to Hank’s Oyster Bar.
In part, Leeds’ letter to the community reads: “If you agree that allowing a small number of individuals to dictate what happens in our community is wrong, please contact ABRA [Alcoholic Beverage Regulation Administration] ([email protected]), Ward 2 CM Jack Evans ([email protected]), CM Jim Graham ([email protected]), Chair of the committee that oversees ABC, and Mayor Vincent Gray ([email protected]). Let them know that the ABC Board should be urged to make a decision quickly after next Wednesday’s hearing, reaffirming the termination of our V.A.
Also let them know that it is time to stop allowing a few residents to dictate what happens in a neighborhood, particularly when the duly elected ANC [Advisory Neighborhood Commission 2B] members feel otherwise. The right of a group of 5 residents to hold up a license application should be eliminated from the law. Otherwise, the situation I find myself in will undoubtedly occur again.”
“Having our popular outdoor dining area suddenly shut down without advance warning and as a result of a spurious complaint by the small group of only six objectors who have been harassing the business since we opened seven years ago is shocking,” said Leeds, who was on-site at the time of the surprise visit by city inspectors. “We haven’t even had our ABC Board hearing on this ongoing nuisance protest,” she continued, “and to be told as the summer season begins that we have to eliminate half of our patio seating is unwarranted and unfair,” said Leeds.
In addition to other requirements, the 2005 V.A., between Leeds and six residents regulated the labeling on the umbrellas Hank’s could use on its patio.
Court of Appeals Ruling
Borderstan first reported on in late May on a piece in The BLT: The Blog of LegalTimes that explained how the District of Columbia Court of Appeals issued an opinion related to the seven-year-long battle between a group of neighbors and Hank’s Oyster Bar. The opinion states that the ABC Board was wrong in their decision to allow termination of the V.A. Hank’s had operated under based solely on whether doing so would have an adverse impact on the community. (See ABC Board Approves Termination of Hank’s V.A., November 2010).
The Court of Appeals opinion states that the ABC Board was wrong in their decision to allow termination of the V.A. Hank’s had operated under based solely on whether doing so would have an adverse impact on the community.
The court reversed the November 2010 ABC Board decision and ordered them to instead determine if Hank’s made a good faith attempts to negotiate an amended V.A. with the group of neighbors who were parties to the original V.A., which dates back to 2005. Shortly after the ABC Board issued the opinion to terminate the V.A. they also agreed to allow Hank’s to expand operations into adjoining space. (See ABC Board Says Hank’s Oyster Bar Can Expand, December 2010).
V.A.s have become common citywide as a negotiating tool that sets restrictions beyond the standard regulations in exchange for a liquor license. Most frequently the V.A. limits hours of service of alcohol both inside and outside on sidewalk cafes. Back in 2010 Leeds said that the major operational restrictions under the V.A. were that Hanks’s had to stop serving alcohol two hours before the restaurant’s closing time, and that dinner could not be served outside one hour before closing time. The 2005 V.A., which Leeds signed, even regulated the labeling on the umbrellas Hank’s could use on its patio.
From Tom Hay. Questions for Tom? Send him an email at Tom[AT]borderstan.com and follow him on Twitter @Tomonswann.
Late last week the blog of LegalTimes reported that the District of Columbia Court of Appeals issued an opinion related to the seven- year-long battle between a group of neighbors and Hank’s Oyster Bar at 1624 Q Street NW in Dupont Circle.
The opinion states that the Alcoholic Beverage Control (ABC) Board was wrong in their decision to allow termination of the Voluntary Agreement (V.A.) Hank’s had operated under based solely on whether doing so would have an adverse impact on the community.
“The neighbors have been overwhelmingly supportive of the expansion. I have not received one complaint since we have opened. I was shocked to hear that the court ruled to overturn the vacating of the voluntary agreement. I thought we had moved forward, but unfortunately it seems we are taking a step back in the growth of this neighborhood,” said Jamie Leeds, chef and owner of Hank’s.
The court reversed the November 2010 ABC Board decision and has ordered them to instead determine if Hank’s made a good faith attempts to negotiate an amended Voluntary Agreement (VA) with the group of neighbors who were parties to the original V.A., which dates back to 2005. Shortly after the ABC Board issued the opinion to terminate the V.A. they also agreed to allow Hank’s to expand operations into adjoining space.
V.A.s have become common citywide as a negotiating tool that sets restrictions beyond the standard regulations in exchange for a liquor license. Most frequently the V.A. limits hours of service of alcohol both inside and outside on sidewalk cafes.
Back in 2010 Leeds said that the major operational restrictions under the V.A. were that Hanks’s had to stop serving alcohol two hours before the restaurant’s closing time, and that dinner could not be served outside one hour before closing time.
Since the November 2010 decision the Board has several new members including a new chairperson, Ruthanne Miller. No word yet on when the ABC Board will review the case again.
From Cody Telep. Follow him on Twitter @codywt, email him at cody[AT]borderstan.com.
The Alcoholic Beverage Control (ABC) Board voted unanimously at a hearing Tuesday to end the suspension of Tabaq Bistro’s liquor license, effective at 6 pm today, March 7. The restoration of the license is contingent on the approval of Tabaq’s new camera system by an inspector from the Alcoholic Beverage Regulation Administration (ABRA).
That inspection and approval was expected to be completed by 6 pm today. Tabaq Bistro, located at 1336 U Street NW, has been closed since a stabbing of a female patron occurred inside the establishment on February 25 (Stabbing at Tabaq Bistro Early Saturday Leads to Temporary Closure).
The ABC Board vote approved the offer in compromise (OIC) negotiated between the D.C. Office of the Attorney General and Tabaq. The OIC requires certain stipulations from the establishment in exchange for the reinstatement of the liquor license. These include installing additional security cameras on the premises.
Tabaq owner Omer Buyukbayrak noted that additional cameras have already been installed on several floors, including two new cameras in the room where the stabbing took place. The new camera system will also allow for storage of videos for 30 days and will make it possible to make copies of footage as needed.
Tabaq is also required to use additional security personnel during events on Fridays and Saturdays and to provide additional training for security employees within 30 days. Buyukbayrak told the ABC Board that Hospitality Operations Security Techniques (HOST) Staff Trainings will take place on April 2 and 3. A revised written security plan must also be submitted to the ABC Board within 21 days.
Tabaq is no longer permitted to have any events sponsored by promoters and cannot charge a cover for entry. The terms and conditions for outside event contracts have been revised to require Tabaq’s approval for any advertising of events online or on posters. A promoted event, “Love vs. Lust, Roses & Rozay,” was going on the night the stabbing occurred. A March 10 event with a cover charge promoted by Basement Knok’ers Entertainment was originally scheduled for Tabaq Bistro, but has now been relocated to Alero Mexican Restaurant’s location in Columbia Heights.
Fernando Rivero of the Office of Attorney General argued that if Tabaq Bistro met these conditions, then the establishment would not pose an imminent danger and could safely reopen. He also noted that Tabaq did not have a history of problems and this was the first reported serious incident there.
The ABC Board voted unanimously to refer the specific stabbing incident inside Tabaq to the Office of the Attorney General for show cause. While the members of the ABC Board believed Tabaq was no longer an imminent danger to the public, they still believed the incident on February 25 was serious enough to warrant further investigation.
Tabaq Bistro is the third Borderstan establishment in recent months to have their liquor license temporarily suspended due to a violent incident. Mood Lounge and Heritage India also both had their licenses reinstated after an ABC Board hearing.