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Showing posts with label The American. Show all posts
Showing posts with label The American. Show all posts

Thursday, June 19, 2014

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.

Tuesday, May 6, 2014

Prospective Blagden Alley Restauranteur Accused of Theft, Sabotage by Investors

Now-bankrupt investors who bought Barracks Row restaurants from Xavier Cervera, aspiring owner/operator of the restaurant "The American" in Blagden Alley, are accusing him of stealing property and deliberately sabotaging his former restaurants. Advisory Neighborhood Commission (ANC) 2F/Logan Circle is protesting the Cervera's application for the Blagden Alley liquor license -- see SALM blog post of March 12.

According to an April 24 Wall Street Journal blog post, the investors claim Cervera, after selling his restaurant properties, kept a Vespa motor scooter and artwork belonging to the restaurants. The investors also claim Cervera used his role as a paid consultant to subvert the operations of his former properties. Cervera's ultimate goal, the documents claim, was to get the investors to default on their payments so he would regain control of the properties.

In their court filing, the bankrupt investors did not make clear how they believe Cervera went about sabotaging their operations.

Cervera has denied the allegations both in the original Wall Street Journal blog post and in a statement to the blog Capitol Hill Corner. Cervera said he "had no ownership, management, or financial control over any of the Debtor’s operations at any time following the sale." Cervera said in the statement to the Wall Street Journal that the scooter and artwork were his personal property.

Meanwhile, The American (official address: 1209 - 1213 10th Street NW) has had a contentious set of negotiations with its neighbors and ANC2F over its liquor license. There were allegations the placards announcing the liquor license hearing were not properly displayed -- see SALM blog post of February 11 -- which led to a delay of the process by several months. The American had a preliminary hearing before D.C.'s liquor-licensing authorities on March 24. On April 2, the liquor-licensing authorities approved a motion from the restaurant's attorney (page seven of 20-page .pdf here) to delay the next scheduled hearing on The American's license.

Wednesday, March 12, 2014

ANC2F Sticks to its Guns vs. "The American" in Blagden Alley

At its regular monthly meeting March 5, Advisory Neighborhood Commission (ANC) 2F/Logan Circle has decided not to settle for half a loaf in its negotiations with local serial restaurateur Xavier Cervera. But not without misgivings.

The site is currently a boxing gym
"They have lawyers," said Commissioner Greg Melcher (district 06). "We don't have lawyers."

ANC2F will meet Cervera's lawyers at a March 17 hearing before D.C.'s Alcoholic Beverage Regulation Administration (ABRA). The topic will be a liquor license for Cervera's planned new restaurant "The American". ANC2F is protesting the liquor license, hoping to compel Cervera to sign a settlement agreement with shorter outside operating hours than he wishes.

The disagreement seems to be over a single hour, on Friday and Saturday nights. Cervera wants to have service in the outdoor part of his restaurant until 1am. The ANC, urged on by future neighbors of the restaurant, wants outdoor service to end at midnight.

Melcher told the committee further negotiations were not possible.

"The applicant has rebuffed me," he said. "The community wants more but we can't get more."

The American will be located in Blagden Alley, which is part of Melcher's ANC district.

ANC2F and The American have agreed on all other aspects of the restaurant's operation, including operating hours for the indoor portion of the establishment and weekday hours for the outdoor part. See a copy of the draft settlement agreement here.

The negotiation between Cervera and ANC2F started last September. The ANC voted to protest the liquor license application at its February 5 meeting -- see SALM blog post of February 11.

Melcher seemed to think it possible that ABRA would find against the ANC, in which case The American might be free to stay open even later -- possibly until 2am on weekdays and 3am on weekends. He wanted to give the ANC and the community the opportunity to settle for Cervera's hours rather than risk losing everything.

An audience member who identified himself as a near neighbor in Blagden Alley urged Melcher not to compromise. At least some of Melcher's fellow commissioners seemed to think the case was winnable.

"I think our chances are pretty good," said ANC2F Chair Matt Raymond (representative for district 07).

No action was necessary to continue the ANC's protest, so no vote was taken on the matter.

An article on the blog BadWolf DC has drawings of what the proposed restaurant might look like.

Monday, February 24, 2014

ANC1B Joins Protest Against MOVA Lounge

Advisory Neighborhood Commission (ANC) 1B/U Street has joined the Meridian Hill Neighborhood Association (MHNA) in protesting the liquor license renewal application of MOVA Lounge (2204 14th Street NW). The ANC voted to protest at its regular monthly meeting on February 6.

MOVA Lounge with placards last week
Last year, the ANC had voted to endorse MOVA Lounge's application in what
seemed at the time to be a routine case with no neighborhood concerns. After it seemed too late to reverse its decision, ANC1B learned that late-night noise from MOVA Lounge's rooftop garden had caused the MHNA and a group of 19 neighbors to protest the renewal application.

An MHNA representative told an ANC1B Committee (see SALM blog post of December 3, 2013) the protesters were unaware the ANC was going to deliberate on this matter because MOVA Lounge had not properly displayed a placard announcing the renewal application.

D.C. liquor licensing authorities apparently agreed with the improper placarding claim. MOVA Lounge was compelled to start the renewal application process over. This gave ANC1B the opportunity to weigh in the on side of the protestors.

At the February 6 ANC meeting, no representative of MOVA Lounge appeared, nor did MOVA Lounge respond to an invitation to attend a February 18 MHNA meeting where the matter was discussed.

At the February 18 meeting, a representative of the neighbors at 1407 W Street said the group had sent "about five emails" to MOVA's lawyer Andrew Klein. There was "zero response", he said.

MOVA Lounge has a rooftop garden at the rear of its building. At its closest point, it is separated from 1407 W Street only by a narrow alley. The 1407 W Street representative told the MHNA that amplified music from MOVA Lounge could be heard until 3am some evenings.

"We are not aggressively against MOVA Lounge," he said.

MHNA voted to continue the protest "in hope of establishing a settlement agreement" with MOVA Lounge.

At the MHNA meeting, Commissioner Ricardo Reinoso (district 05) said ANC1B's protest letter was "signed and ready to be delivered" before a March 3 deadline.

This is the second time in less than a month that a midcity liquor licensee has been tripped up by the placarding process. Last month, after accusations of improper placarding set the process back to square one, ANC 2F/Logan Circle voted to protest the new liquor license for Xavier Cervera's new Blagden Alley restaurant, The American -- see SALM blog post of February 11.

The MOVA Lounge vote was unanimous, with Commissioner Tony Norman (district 10) abstaining. Commissioners Sedrick Muhammed (district 02) and Deborah Thomas (district 03) were not present at the ANC meeting.

MOVA Lounge is in the ANC district of Commissioner Thomas.

Tuesday, February 11, 2014

ANC2F Votes to Protest Liquor License for The American in Blagden Alley

Neighborhood Advisory Commission (ANC) 2F/Logan Circle voted unanimously at its regular monthly meeting February 5 to protest the liquor license application of The American, a new restaurant by local serial restaurateur Xavier Cervera. The street address of the restaurant will be 1209 - 1213 10th Street NW, which is in the Blagden Alley-Naylor Court Historic District.

The notices were put on the roll-up door, right
The American seemed well on its way to getting a liquor license last year. As reported in the SALM blog post of September 24, 2013, ANC2F had missed a deadline to protest The American's liquor license application. This meant that the ANC had much less leverage in negotiations for a settlement agreement on such contentious issues as noise abatement and outside operating hours.

However, some neighbors complained that the liquor license application notice had been improperly displayed on the side of the building (see SALM blog post of November 14, 2013) . The notice had been placed on a roll-up door, which was open part of the day, the neighbors said. D.C. liquor licensing authorities, apparently sympathetic, required that the process start over from the beginning, including freshly-posted notices elsewhere on the site. This gave ANC2F a chance to recover and gain legal standing as a protestant.

It was announced that the ANC would try to reduce the hours that the establishment could operate, ask for additional trash compactors, clear vermin control measures, and a mechanism to remedy disagreements.

ANC2F Chair Matt Raymond (Commissioner for district 07) said the protest would be on the basis of the possible disruption of peace, order, and quiet in the neighborhood, and that any Commissioner was empowered to negotiate on the ANC's behalf.

After the meeting, a posting summarizing the February 5 ANC2F meeting appeared on the web site of the Blagden Alley Naylor Court Association. It is signed by "BANCA", but may have been written by Commissioner Greg Melcher (district 06), in whose district The American plans to operate, or by another commissioner. The post says:
Voted to protest the license for the American.  I will attempt to negotiate better terms than we had prior however I need to note that the agreement we approve at the ANC level will be generally consistent with other agreements (modeling the SA [settlement agreement] on the Glass House which has a second floor summer garden on the rear facing the rear of residential properties on the 1300 block of Vermont and Rhode Island Avenues very similar to the American).
The next meeting of the full ANC2F is scheduled for 7pm on Wednesday, March 5, at the Washington Plaza Hotel (10 Thomas Circle).


Thursday, November 14, 2013

Liquor License Endorsements, Protests from ANC2F

Advisory Neighborhood Commission (ANC) 2F/Logan Circle voted on a handful of liquor-license-related matters at its last regular monthly meeting on November 6. ANC2F voted to protest one liquor license application, and approve four others. It also voted to endorse a new settlement agreement with a "The American (soon to open in Blagden Alley), and against a request by The Park at 14th to terminate a settlement agreement.
A "settlement agreement" is often reached between an ANC and a liquor-serving establishment and codifies the establishment's operating hours and other details which effect the community.

The American
The roll-up garage door (right) was a bone of contention

ANC2F unanimously voted to support a settlement agreement negotiated between the ANC and Blagden Alley Entertainment, LLC., which will operate "The American" restaurant. The official address will be 1209 - 1213 10th Street NW, but the restaurant will actually be located in Blagden Alley, a historic district inside the block bordered by 9th, 10th, M, and N Streets. 

There was much community interest and some community opposition to the opening of The American. It was the subject of the September 24 SALM blog post.

Among the provisions of the settlement agreements are:
  • The restaurant will close at 1 a.m. Monday - Thursday and 2 a.m. on Friday and Saturday.
  • The outdoor consumption of food and drink will cease at 11 p.m. Sunday - Thursday and 1 a.m. Friday and Saturday.
  • Outside music will cease at 11 p.m. Sunday - Thursday and 1 a.m. Friday and Saturday.
  • Deliveries will be made by hand truck -- no trucks in Blagden Alley.
  • The American will discourage smoking outside the restaurant.
The text of the entire settlement agreement is available here.

There were still a few neighborhood voices protesting the restaurant up until the very last minute. One attendee accused The American of hiding a mandatory public notice on a roll-up door, so that it was not visible to the public most of the time. The notice contained information about The American's liquor license application, including times and places when members of the public could attend hearings on the matter.

I took the picture accompanying this article (above) in September. The notices can be seen on the metal garage door in the right of the picture.

Commissioner John Fanning (district 04) would look into the allegation, which would be a violation of liquor-license regulations if proved true. Fanning is chair of ANC2F's liquor-licensing affairs committee.

The Park at 14th

ANC2F voted 7 - 1 to oppose the termination of the settlement agreement between The Park at 14th nightclub (920 14th Street), an abutting neighbor, and the ANC. The lone vote against was by ANC2F Chair Matt Raymond (Commissioner for district 07).

The Park at 14th's operators appeared before the full ANC at its last meeting on October 2nd to say they wished to terminate the agreement, comparing the agreement to handcuffs. This was reported in the October 9 SALM blog post.

The Park at 14th's operators also said the agreement was unfair because many of their competitors were not compelled to have a settlement agreement. It has been informal ANC2F policy for many years not to require settlement agreements for establishments south of Massachusetts Avenue, because the area is largely non-residential. It is not clear why The Park at 14th (which is in this area) became an exception to this policy. However, this anomaly led to accusations of bias against The Park at 14th's operators at the October ANC2F meeting.

The commissioner voted to make formal policy stating that all new and existing liquor licensees, no matter where in ANC2F they were, should come before the ANC to acquire, renew, or change the conditions of their liquor license. The vote was 7 - 1, with Commissioner Raymond once again the sole "no" vote.

Vita Lounge

ANC2F voted to protest the liquor license renewal request for Vita Lounge (1318 9th Street). It was reported the establishment had 28 violations of liquor-licensing rules. The manager had been called by the ANC and told the ANC she would not come to the ANC meeting.

ANC2F's liquor-licensing affairs committee had unanimously recommended the full ANC protest Vita Lounge's application. 

Sherri Kimbel, Director of Constituent Services for D.C. Councilmember Jack Evans, suggested ANC vote to make two separate protests against the Vita Lounge. One protest would concern its liquor license, the other protest would concern its cover charge, dancing, and entertainment endorsement. ANC2F followed her advice and passed two separate protest motions. 

Commissioner Greg Melcher (district 06) promised to contact the operator of the Vita Lounge about the protest. The Vita Lounge is in Melcher's ANC district.

Records show Vita Lounge was fined $750 in April for a violation of its settlement agreement. Another document shows Vita Lounge failed to pay this $750 file within 30 days as ordered. The same document indicates Vita Lounge had a further outstanding fine from January.

Separate records show Vita Lounge has an appointment to appear before D.C.'s Alcoholic Beverage Control (ABC) Board on December 4 because it "failed to comply with the terms of its offer of compromise dated October 24, 2012".

Routine approvals

The full ANC followed the recommendation of its liquor-licensing affairs committee to approve liquor license renewals for the following establishment: Capitale (1301 K Street), Ghibellina (1610 14th Street), Number Nine (1435 P Street), and Vegas Lounge (1415 P Street). There was no debate or discussion about these applications.

ANC2F's summary of the entire meeting of November 6 is available here.

Tuesday, September 24, 2013

Blagden Alley Meets Restauranteur at ANC2F Liquor Committee

The residents of Blagden Alley came out in force to quiz restauranteur Xavier Cervera on September 19 about his proposed new establishment. The venue was the monthly liquor-licensing affairs committee meeting of Advisory Neighborhood Commission (ANC) 2F/Logan, held at the Washington Plaza Hotel (10 Thomas Circle NW).

Blagden Alley is located inside the block bordered by 9th and 10th Streets to the east and west, and M and N Streets to the south and north. It is a National Park Service Historic District.

An anonymous leaflet, which taped to the doors of many area houses on the day of the meeting, apparently helped raise the level of attendance. Over thirty members of the public packed the tiny hotel meeting room, sending hotel staff scrambling for extra chairs.

Meetings of this type are normally attended by only a handful of individuals.

ANC misses protest deadline

Due to a communication error, ANC2F missed the September 9 deadline to protest this liquor license before DC's Alcoholic Beverage Control (ABC) Board. ANCs often file protests before meeting aspiring liquor licensees in order to maintain leverage in negotiations. These negotiations often are about operating hours, trash pickup, noise, outdoor seating, and other parts of restaurant operation that effect the neighboring area. The agreements that restaurants, ANCs, and other parties sign on these matters are called "settlement agreements". In this case, ANC2F will attempt to negotiate a settlement agreement without the threat of a protest before the ABC Board.

Restauranteur Cervera testifies

Cervera is a long-time restaurant and hotel operator. Late last year, he sold all nine of his DC restaurants to a Boston equity firm reportedly headed by his brother. This restaurant, to be called "The American", is the first one he will open since the sale.

Future front of The American
Cervera told the meeting that The American will go up on a Blagden Alley site until recently occupied by a boxing gym, plus an adjoining parking area for a Rent-a-Wreck franchise. The boxing gym will convert into an indoor restaurant, and the parking lot in a large, completely-enclosed outdoor patio. This will require a "major renovation", he said.

The restaurant will feature "casual dining".

"We will be very neighborhood friendly," Cervera said.

The American will seek a category CR (restaurant) liquor license. There will be no entertainment endorsement, but recorded music will be used. According to Cervera, there will be no unusual operating hours for either the indoor or outdoor parts of the restaurant. This means the restaurant seeks permission to operate inside until 1am Sunday - Thursday, and 2am Friday - Saturday, and outside until 11pm Sunday - Thursday, and 1am Friday - Saturday.

Future location of The American patio
Commissioner John Fanning (district 04), chair of ANC2F's liquor-licensing
committee, asked about the planned patio. Cervera said he plans to level and raise the current parking lot two feet, and install a seven-foot high privacy fence around the outside of the property.

A placard outside the future site of the restaurant says the indoor seating capacity will be 70 and the outdoor seating capacity will be 75.

The planned opening is May - July 2014.

Cervera told the residents "restaurants are coming, not retail" because Blagden Alley is not on a regular route taken by either pedestrians or automobiles. Cervera also said the residents were better off dealing with a restaurateur with a proven track record.

The community's turn

Fanning said that each person would be granted two minutes to speak, but the rule was not strictly enforced. No one tried to monopolize the discussion, and  people gave the impression they had said all they wished to.

A few residents declared themselves categorically against the restaurant.

"Washington doesn't need another restaurant", one said. 

"Totally incompatible with families," said another. "Not compatible with we want in the inner city."

However, most seemed to want air specific concerns or request specific limitations. Most of these were about noise, trash, and parking.

Several of the area residents commented on the "canyon effect" of the alley, meaning, that the noise of exiting customers, deliveries, and other normal restaurant business would be magnified to intolerable levels.

Concerning parking, all sides seemed to be in favor of a complete ban of parking in the alley and instant ticketing for all violators.

"Getting in and out of the alley is a big concern to us," said resident of the 900 block of M Street.

Both sides seemed to agree on a provision that would exclude delivery trucks from Blagden Alley. All delivery trucks would have to park on adjoining thoroughfares and bring deliveries to the restaurant with handtrucks.

In response to a question from a resident of the 1200 block of 10th Street, Cervera said there would no signage showing the way to the restaurant.

A Blagden Alley resident who identified himself as a fellow restauranteur said he was concerned about the restaurant's exhaust and air conditioning system.

"My terrace is five feet from your roof," he said.

The fellow restauranteur and Cervera continued a long discussion over site diagrams in the corridor outside after the meeting was finished.

During the meeting, a debate occurred when the Blagden Alley residents tried to push back on operating hours for the outdoor patio. The residents lobbied for earlier closing on weekdays than 11pm. Cervera disagreed. Finally, there was an agreement not to serve customers outside after 10:30pm, although customers eating on the patio at that time would be allowed to finish their meals.

Motion to support passes

After more than an hour of community comment, ANC2F's liquor-licensing affairs committee passed a motion to support The American's application for a liquor license, with the understanding that there would be continued work on a settlement agreement. The vote was 5-0, no abstentions.

The matter may come to the attention of the full ANC at the next scheduled meeting on October 2 at the Washington Plaza Hotel. The meeting will start 30 minutes earlier than usual, at 6:30pm, to facilitate an appearance by Jack Evans, Councilmember for Ward Two on DC's City Council. Evans and members of the Metropolitan Police Department will discuss the recent gun-related violence in Logan Circle.

The next hearing on The American's application before the ABC Board will occur on September 23.