When NIMBYs Fail: The Liquor-license Case of "The American" (Blagden Alley)

Advisory Neighborhood Commission (ANC) 2F/Logan Circle decided at its regular monthly meeting May 14 to sign a settlement agreement with serial restauranteur Xavier Cervera, aspiring proprietor of "The American", a "classic American bistro" to be located in Blagden Alley, with the official address of 1209 - 1213 10th Street. By the time this post is published, the agreement will probably have been signed, but it is not posted on the web site of DC's Alcoholic Beverage Regulaton Administration (ABRA) as of this writing.

Future site of The American, once a boxing gym

At the last meeting of ANC2F on June 4, a neighbor who was part of a Group of Five or More Individuals separately protesting The American's liquor license returned to complain bitterly about the ANC's decision to sign a settlement agreement with The American and withdraw the ANC's protest. The group of five's protest will now be dismissed in accordance to a provision in the Omnibus Alcoholic Beverage Regulation Emergency Amendment Act of 2012 (now part 25-609(b) of the DC Code).

In the event that an affected ANC submits a settlement agreement to the Board on a protested license application, the Board, upon its approval of the settlement agreement, shall dismiss any protest of a group of no fewer than 5 residents or property owners...

The neighbor and ANC Commissioner Greg Melcher (district 06) went around and around the same point at the June 4 meeting. The neighbor wanted The American to keep a complaint log. She wanted the complaint log to be accessible to neighbors and Commissioners. Melcher explained such a provision was considered unenforceable by ABRA. Several times, the neighbor asked rhetorically why, if this type of provision was unenforceable, was it included in the ANC2F settlement agreement template. The Commissioners tried several explanations, none of which satisfied the neighbor.

The reason why

Here is what the commission failed to explain at the meeting: the ANC2F settlement agreement template has a provision under which a liquor licensee must keep a complaint log, because a complaint log is allowable if the complaint log will be accessible by ABRA only, not by ANCs or neighbors. This type (and only this type) of complaint log is enforceable, according to ABRA.

Of course, there is something odd about requiring someone to maintain a complaint log which you cannot access.  It would not be unreasonable for a protesting neighbor to believe that ABRA will not be as vigilant in checking on the maintenance of such a log as the protesting neighbor him- or herself might be. Requiring this provision in its enforceable form would be, at best, of very limited utility.

Melcher told the complaining neighbor several times that Cervera had lawyers who would have no trouble demonstrating the complaint log provision was unenforceable. The result could be that the entire agreement that Melcher and the ANC had negotiated -- with limitations on operating hours and other provisions that would benefit the community -- could be voided. Cervera would then be free to stay open for longer hours, and refuse to honor other previously-agreed-upon obligations.

Fear of losing this "half-a-loaf" is why Melcher advocated signing the settlement agreement he had negotiated. In March, ANC2F voted to continued its protest, but by May Melcher had convinced his fellow commissioners that continuing to insist on this unenforceable provision was a losing proposition.

A second mistake

In addition to insisting on an unenforceable provision, the neighbors made a second serious error which doomed their protest.

There are three different types of citizens' groups which can gain standing to protest a liquor license. One is a registered citizens' group, which must have public meetings and meet other criteria. The second is an abutting neighbor, whose property must share a common border with the liquor licensee's property. The third is a Group of Five or More Individuals. As noted above, a protest by the last of these three can be dismissed if the ANC reaches a settlement agreement with a liquor licensee. However, the other two groups may continue to protest a liquor license, even if their ANC signs a settlement agreement.

In the case of The American, the protesting neighbors constituted themselves as as official Group of Five or More Individuals, and gained official standing in the liquor license protest. After the deadline to gain standing had passed, the Group of Five or More Individuals tried to split into two groups. One was a group of abutting neighbors, 12 in all, according to an ABRA document. Perhaps the neighbors realized, too late, that their position would be stronger if they could be recognized as a group of abutting neighbors, because their protest could not be as easily dismissed.

Cervera's attorney objected and the neighbors' attempt to change status was rejected on May 28 by ABRA as "untimely", meaning, it occurred after the deadline to establish yourself as an officially objecting party. With this rejection, their last hope to force more concessions from Cervera died. They will have to live with the "half-a-loaf" agreement.

I don't know if the neighbors consulted a lawyer of their own at any point.

More likely, they tried to work the system without help of a lawyer. If so, the lesson of this story seems to be: if you're going to try to block a liquor license, it's worth it to hire an attorney at least as knowledgeable as your adversary's.