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Showing posts with label settlement agreements. Show all posts
Showing posts with label settlement agreements. Show all posts

Tuesday, March 17, 2015

Darnell's Signs Agreement with U Street ANC, Protests Dismissed

Advisory Neighborhood Commissioner (ANC) 1B/U Street has signed a settlement agreement with Darnell's Bar (944 Florida Avenue NW), which will attempt to limit the noise coming from the establishment. As a result, the ANC withdrew its protest of Darnell's liquor license renewal as of March 11th, the date the agreement was officially recognized by DC's Alcoholic Beverage Control Board (ABRA).

Image of Darnell's from Google Street View
Protests by the ANC and other groups had threatened to close the establishment -- see SALM blog posts of October 22 and December 10, 2014.

Beside the ANC, three other parties were protesting the renewal. Two of these three protests were also dismissed on March 11th. One of the dismissed protest was that of a group of five or more neighbors. Any protest by a group of five or more is automatically dismissed when an agreement between the ANC and the establishment is signed, as set forth in Section 25-609 of DC Code.

The second dismissed protest was that of an abutting neighbor, who lives above the establishment. This neighbor's protest was dismissed because she failed to attend an ABRA hearing on February 18. Information gathered from an ABRA official transcript of the hearing indicates that the neighbor had gone "way down in Virginia" to visit family during the long Presidents' Day weekend immediately previous, and then was unable to return to DC due to a February 17 snowstorm that brought the area to a halt, closing schools and the federal government.

The third protesting party attended the hearing. He told ABRA about the upstairs neighbor's inability to make it back to the city, but said he had talked to the upstairs neighbor. She wished to remain a party to the protest.

He was asked if he had anything in writing that stated this.

"I couldn't get anything in writing. She left before the snow come," he replied.

He was asked if he had any email that stated this. He didn't.

"I'm not computer literate anyway and neither is she," he said.

According to the same transcript, the upstairs neighbor's protest was then dismissed. The neighbor who attended the hearing was advised that an appeal of the decision was possible if filed within 10 days of receiving notification. However, a March 11 ABRA document (page seven of an 18-page .pdf here) says that the neighbor's request for a reinstatement was unanimously denied. No reason for the denial was given.

On the same day, the protest of the upstairs neighbor was officially dismissed. See the order dismissing the protest here.

One protesting party remains -- a second abutting neighbor. This neighbor will get to make a case against Darnell's at the ABRA protest hearing, scheduled for April 8 at 1:30pm at ABRA offices at the Reeves Center (14th and U Streets).

The text of the settlement agreement between ANC1B and Darnell's can be seen as on the last page of the order dismissing the protest of the group of five or more here.

ANC1B voted to enter the settlement agreement with Darnell's at its regular monthly meeting in January -- see SALM blog post of January 12.

Wednesday, March 11, 2015

Shaw ANC Tries to Solve Persistent Liquor-Licensing Problem

Advisory Neighborhood Commission (ANC) 6E/Shaw is trying to develop a solution to a chronic city-wide liquor-licensing problem. The problem is: restaurants "morphing" into nightclubs late in the evenings, meaning, restaurant proprietors clear away the tables, turn up on the music, and serve mostly or completely alcohol into the wee hours of the morning. Fear of these stealth nightclubs is what drives many objectors to restaurant-category liquor licenses -- see, for example, the May 16, 2014, SALM blog post about a proposed Florida Avenue establishment.

(photo credit below)
In response, ANC6E, with the help of the liquor-licensing lawyers they deal with, has developed a new template for settlement agreements between the ANC and restaurant proprietors. These agreements often dictate to what hours a liquor licensee may operate, as well as where and when they can feature live or recorded music.

The ANC6E template allows the counter-parties to these agreements to feature live music on a limited number of occasions. They may have live music at all weekend brunches and New Year's Eve. In addition, they are allowed twelve private parties with live music every year. After that, they are allowed six further instances of private parties every year which must be applied for as a "one-day substantial change" to the liquor license at DC's liquor-licensing authorities.

DC liquor-licensing rules limit the number of one-day substantial changes for an establishment to six per year. They involve additional paperwork, often notarized, to file with DC liquor-licensing authorities, as well as an additional fee of up to $300 per instance, all of which is probably a sufficient deterrent to filing for one unless absolutely needed.

The advantages seem to be: the restaurants have the flexibility to feature music late weekend mornings (when late-night noise and rowdy behavior is not an issue) and host a limited number of wedding-related events, office parties, etc., without having to petition the ANC for each event. On the other hand, the ANC gets a guarantee that late-night music and dancing will not be a regular occurrence.

Most recently, ANC6E used this template to come to a settlement agreement with, and endorse the liquor license of, Ottoman Taverna (425 I Street NW, at the corner of 4th and I Streets). The endorsement came at ANC6E's last regularly-scheduled meeting on March 3. Attorney Steve O'Brien of Mallios & O'Brien represented the applicant and said that the existing template made it much easier to negotiate the new agreement.

"It took me three minutes to prepare this version," O'Brien said.

O'Brien also told the ANC the new establishment would have inside seating for 166 and planned a sidewalk cafe with a capacity of 74. Service would continue until 2am weekdays and 3am weekends inside, and 11pm weekdays and midnight weekends outside. There would be no recorded music outdoors.

ANC6E's liquor-licensing affairs committee had review and recommended approval of the settlement agreement and endorsement of the liquor-licensing application, and the full ANC voted unanimously in favor, with one abstention.

Ottoman Taverna will be the third establishment in the same block by restauranteur Hakan Ilhan, joining Alba Osteria (also 425 I Street NW) and L'Hommage (450 K Street). L'Hommage received its liquor license endorsement and signed a settlement agreement with ANC6E last month based on the same template -- see SALM blog post of February 12.

(photo credit: from sfweekly.com. Labelled for reuse on Google Images.)

Friday, February 27, 2015

14th Street Sidewalk Cafe for Slipstream Coffee

A committee of Advisory Neighborhood Commission (ANC) 2F/Logan Circle unanimously endorsed a request for a sidewalk cafe for coffee shop/cocktail bar Slipstream (1333 14th Street NW) at a regular monthly meeting on February 25.

(Photo credit below)
A settlement agreement signed by the establishment and ANC2F in 2013 dictates that the sidewalk cafe cannot have more than 20 seats. The same agreement also says Slipstream can serve sidewalk patrons starting at 8 am seven days a week. They can continue until midnight Sunday to Wednesday, and 1 am Thursday to Sunday, plus the evening before federal holidays.

Ryan Fleming, co-proprietor (with wife Miranda) of Slipstream, told ANC2F's Community Development Committee (CDC) that DC public space regulations will also limit the number of tables to four.

In order to use public space like a sidewalk, it is necessary to get a public space permit from the District Department of Transportation (DDOT). A letter of endorsement from the ANC makes the process go more smoothly.

The plan is to put tables outside during hours of operation and pull them in at closing -- no permanent fixtures. There will be no railing fences at the perimeter of the space. The committee recommended putting planters at the corners of the outside space.

There were comparisons to the outdoor space of their immediate neighbor, the restaurant Birch and Barley (1337 14th Street) when Fleming told the ANC that slipstream would have an awning.

"Will it be as imposing as Birch and Barley?" asked CDC member Jim Lamare (Commissioner for district 05).

"The awning is not similar to theirs," Fleming said. He further explained that the awning was already in place and, unlike Birch and Barley, was attached to the building.

In many cases, after getting a public space permit from DDOT, a liquor licensee has an additional step of going back to DC's liquor-licensing authorities for specific permission to sell alcohol outside. However, in this case, the proprietors had the foresight to have provisions about outdoor service written into its original settlement agreement (an 11-page .pdf viewable here), even though they did not immediately use it. At the meeting, Fleming said Slipstream did not start outdoor service directly upon opening because it did not have the money to buy extra tables, chairs, planters, etc.

This matter is on the agenda for the next meeting of the full ANC, scheduled for Wednesday, March 4, at 7pm, at the Washington Plaza Hotel (10 Thomas Circle). Matters passed unanimously by the CDC are routinely passed by the full ANC without further discussion, unless someone from the community shows up to object.

There is a September 20, 2013, SALM blog post about this establishment when it was still in its planning stages.

(Photo credit: Joe Flood/flickr.com - Creative Commons License 2.0)





Thursday, February 19, 2015

Intervention by Bar Operator's Mother Fails to Prevent ANC2B from Protesting Extended Operating Hours

At its regularly-scheduled meeting on February 11, Advisory Neighborhood Commission (ANC) 2B/Dupont Circle voted to protest the application of the owners of Parlay (1827 M Street NW) to extend their hours of alcoholic beverage sales and live entertainment. All the Commissioners present voted in favor of the protest.

Parlay now in the former Malaysia Kopitam space
Currently, Parlay is allowed to service alcohol and live entertainment until 10pm Sunday through Thursday and 11pm on Friday and Saturday. The establishment seeks permission to serve alcohol until 2am Sunday through Thursday and 2:45am Friday and Saturday, and to have live entertainment until 2am Sunday through Thursday and 2:30am Friday and Saturday.

The space was formerly occupied by the restaurant Malaysia Kopitam, but the new establishment has a "much bigger bar aspect".

The ANC asked the proprietor what sort of live entertainment he was planning. He said he had "no specific plans -- just thought the restaurant would ask".

There was some confused talk about what hours the old Malaysia Kopitam had on its license when it closed and the license was purchased, compared to what hours the same liquor license bore when it was re-issued to Parlay. The bar owner and the ANC had been discussing this issue for a few minutes when a woman in the audience stood up and strode past the proprietor standing at a microphone to testify to the ANC. Without being officially recognized by the ANC Chair, the woman stood before the ANC and set it straight on the hours of service attached to the liquor license in the past and now.

"This is my mom," the proprietor said sheepishly.

Noting that there were "trash and noise concerns generally", the ANC expressed a wish for a "clear and strong settlement agreement". The motion to protest included a provision that the protest would be dropped if a settlement agreement was signed.

Malaysia Kopitam did not have a settlement agreement with ANC2B.

According to information on the website of DC's Alcoholic Beverage Regulation Administration (ABRA), a preliminary hearing on Parlay's request for longer operating hours will take place on March 23 at 10am at ABRA's offices at the Reeves Center (14th and U Streets).

(photo credit: August 2011 image from Google Street View)

Thursday, February 12, 2015

New French Bistro in Mount Vernon Triangle Gets Liquor License Endorsement

At its regularly scheduled meeting February 3, Advisory Neighborhood Commission (ANC) 6E/Shaw endorsed the request for a liquor license by restauranteur Hakan Ilhan, who plans to open a French Bistro named "L'Hommage" at 450 K Street NW, across the street from the mixed-use City Vista building.

450 K Street in June 2014 (Google Street View)
Attorney Stephen J. O'Brien of the law firm Mallios & O'Brien introduced Ilhan as a person well known to the ANC and the community. Ilhan is the owner of the nearby Alba Osteria (425 I Street NW). ANC6E Chair Marge Maceda (Commissioner for district 05) suggested at the meeting that there might be a third restaurant from Illhan in the area soon.

L'Hommage will be in Maceda's ANC district.

The liquor license request had been examined by ANC6E's liquor-licensing affairs committee before the meeting. The parties had negotiated a settlement agreement, which was signed at the meeting and will become part of L'Hommage's liquor license. At the meeting, liquor-licensing committee chair Alexander Padro (Commissioner for district 01) said the applicants had agreed as part of the settlement agreement to close the 80-seat outdoor patio at midnight and also to limit the number of evenings in a year with live entertainment. This, Padro said, is to make it more difficult for L'Hommage to convert or evolve into a nightclub, as sometimes happens with restaurant-category liquor licensees in the downtown business district.

See an September 2014 from the Washington Business Journal about L'Hommage here.

Of the seven Commissioners, four voted in favor of the liquor license. There was one abstention and two Commissioners were absent.

ANC6E videos its meetings in their entirety and posts them on its YouTube channel. The discussion of the liquor license for L'Hommage can be seen by following this link to the first part of the February 3 meeting, starting at time 24:30.

Monday, January 12, 2015

ANC1B Approves Settlement Agreement with Darnell's

At its regular monthly meeting January 8, Advisory Neighborhood Commission (ANC) 1B/U Street voted to enter into a settlement agreement with Darnell's Bar (944 Florida Avenue NW). The vote was unanimous.

Darnell's via Google Street View
The agreement says Darnell's will close at 1am on weekends and midnight on weekdays. It also says there will be no outdoor music and all windows and doors will be shut except when patrons are entering or leaving the establishment. Darnell's will also guarantee that there are noise-dampening curtains in the windows at all times. 

This was the second meeting in a row where ANC1B voted on a settlement agreement with Darnell's. At the last meeting of the ANC, the outgoing commissioners voted to reject a draft settlement agreement -- see SALM blog post of December 10. After that rejection, there were additional negotiations with neighbors who have been involved in a lengthy dispute with the bar, and the new version of the settlement agreement was more to their liking.

It was reported that, although the neighbors were "satisfied" with the settlement agreement, they would continue to protest the liquor license renewal application before DC's Alcoholic Beverage Regulation Administration (ABRA).

There are two parties protesting the liquor license renewal. One party is a group of five or more neighbors. Under Section 25-609 of DC Code, ABRA will automatically dismiss this group's protest once it approves the ANC's settlement agreement.

"The group of five is OK with that," said Nick Baumann, chair of ANC1B's liquor-licensing affairs committee, in his report to the ANC.

The other party is a single individual who is an abutting neighbor to Darnell's. Specifically, the neighbor lives upstairs. As an abutting neighbor, this protest falls into a different category and will not be automatically dismissed as a result of the settlement agreement. It seems like likely that more hearings and attempts at arbitration will result. However, it has been reported that the upstairs neighbor is interested in no other outcome than the complete closure of the bar.

Darnell's is known alternately as Manchester Bar and Darnell's Manchester Bar. During the daytime, The Blind Dog Cafe, a coffee house, operates in the same space.

Thursday, October 23, 2014

Astonishingly Short ANC Committee Meeting

Last night, the liquor-licensing affairs committee of Advisory Neighborhood Commission (ANC) 2F/Logan Circle met. It completed all its business in 12 minutes. This is the shortest ANC-related meeting I have attended.

No one from the community appeared to object to any of the liquor license renewal requests.

The most complex item concerned the Capitol Supermarket (1231 11th Street NW). The committee wanted to include an item in the establishment's settlement agreement stating that deliveries will be taken from 11th Street (i.e., the front of the supermarket) and not the rear alley. The owner said he would, except in cases where official or construction vehicles took up the parking spaces in front of the building. The committee agreed to include language to this effect.

The second item was the liquor license renewal for Whole Foods (1440 P Street).

"No one objecting to the rowdy crowds at Whole Foods?" a committee member asked in mock astonishment.

The third item was a request by Studio Theater (1501 14th Street) to change their liquor-license category from D-X to C-X. This will allow the theater to serve hard liquor, in addition to wine and beer, to patrons.

The fourth item was a liquor license renewal for Cork & Fork (1524 14th Street). No one objected to that either.

Congratulations to all involved on the short meeting.

The items above will now be considered at the next meeting of the full ANC, scheduled for Wednesday, November 5, at 7pm, at the Washington Plaza Hotel (10 Thomas Circle). Items like those above, which pass the committee unanimously with little controversy, normally are passed by the full ANC as a slate with little or no discussion.

Wednesday, October 22, 2014

944 Florida Avenue: "The Neighbor Upstairs Wants the Place Closed"

At a meeting October 15, a committee of Advisory Neighborhood Commission (ANC) 1B/U Street voted to recommend the ANC attempt to broker peace between the operators of Darnell's Bar (944 Florida Avenue NW) and a group of neighbors. But Nick Baumann, chair of ANC1B's liquor-licensing affairs committee, wasn't very optimistic of the chances of smoothing over the contending parties.
944 Florida Avenue (Google Street View)

"The neighbor upstairs wants the place closed and won't compromise," Baumann told the committee, reporting about an attempted mediation between the bar and its neighbors.

"The complaint about Darnell's is the music," a committee member said. Neighbors angry about the noise from the establishment have been protesting the renewal of Darnell's liquor license since at least 2013, according to documents available at the web site of DC's Alcoholic Beverage Regulation Administration (ABRA).

A neighbor who lives upstairs in the same building from Darnell's gave the following testimony (see page 17 of a 24-page .pdf here) about the establishment at a February 26, 2014, ABRA hearing:
... [W]e tried to get along with the party and we need a sound proof because we can hear everything that's going on downstairs. Got my window shaking, my picture dropping off the wall. And we tell him to cut the music down, he don't. We done called the police. I bet a couple, over a hundred-some times, they go and they tell him, the manager, cut the music down.
In addition to the upstairs neighbor, residents of the Floridian, a nearby apartment building, and other neighbors have joined the protest against Darnell's.

There has been an attempt to settle the dispute by getting the liquor licensee to sign a settlement agreement, which could make clear, for example, the hours of operation, permitted noise levels, and mechanisms for resolving disputes. However, the settlement agreement recently drafted by the lawyer for Darnell's said, in summary, that Darnell's agreed to abide by the letter of the law -- not really a document worth signing.

"There's stuff to be negotiated but who will negotiate?" Baumann asked at the meeting. Baumann is committee chair but has said previously that contentious negotiations with liquor licensees often require the authority of an elected official.

Darnell's is in district 11 of ANC1B. The Commissioner is E. Gail Anderson Holness. Holness is running for election as Ward One representative on the DC State Board of Education. She will give up her ANC seat at the end of the year.

ANC1B Chair James Turner (Commissioner for district 09) attended the meeting, although he is not on the alcohol-licensing committee. Turner advised the committee that Holness could negotiate on this matter, but she would need clear guidance from the committee on what were the desired outcomes of the negotiations.

"If you ask Gail to make it better, make it specific," Turner said.

The committee came up with some clear goals for the negotiations, such as explicit promises to close all windows and doors while music was playing, no amplified music outside, no noisy disposal of glass bottles and other trash between 10pm and 7am.

The committee then passed a resolution to recommend a settlement agreement be negotiated by Commissioner Holness with the owner.

The resolution will probably come up at the next meeting of the full ANC, scheduled for Thursday, November 6, at 7pm, at the Reeves Center (14th and U Streets).

During the daytime, The Blind Dog Cafe, a coffee house, also operates at 944 Florida Avenue. The Blind Dog Cafe was not discussed at the meeting. 


Monday, September 22, 2014

CORRECTED: DC Liquor Licensing Chief on Proposed New Legislation, Rules

CORRECTED (1:30pm): I incorrectly stated that all of the changes below would be contained in the new legislation to be considered by the City Council. In fact, some of the changes will be part of the legislation, and other changes will be part of a separate set of ABRA rule changes. The article underwent some rewriting as a result. Thanks to Jessie Cornelius of ABRA for the information, and apologies for any inconvenience caused.

Fred Moosally, Director of DC's Alcohol Beverage Regulation Administration (ABRA), spoke on September 17 about two proposed new tweaks to DC's alcoholic beverage control regime. He told a meeting of the liquor-licensing affairs committee of Advisory Neighborhood Commission (ANC) 2F/Logan Circle that a City Council hearing on the a bill is scheduled for October 16 at 10am. The new legislation would amend the Omnibus Alcoholic Beverage Regulation Amendment Act of 2012.

Moosally (standing) speaks at the meeting
This new legislation is called "The Omnibus Alcoholic Beverage Regulation Amendment Act of 2014" and is Bill 20-902.

The second legislative item are new proposed rules, which are separate and require a 30-day public comment period. There will also be a separate public hearing on the regulations.

"The last draft I saw is a lengthy document," Moosally said, referring to new proposed rules.

Moosally said one of the aims of the proposed change to the 2012 law was to clarify of the rights of abutting property owners to liquor licensees. Some background: Under the 2012 bill, Section 25-609 of the District of Columbia Official Code was changed. This section concerned procedures when groups protest the issuance or amendment of liquor licenses. It changed the existing procedure so ABRA would automatically dismiss the liquor-license protests "groups of five or more" (usually neighbors of the establishment) if the local ANC reaches an agreement with the licensee -- see, for example, the cases reported in SALM blog posts of June 19, 2014, and November 18, 2013.

However, the 2012 bill was "silent", Moosally said, on the rights of abutting property owners, that is, property owners who share a property line with a liquor licensee. The new law would make explicit that, unlike "groups of five", a protest by an abutting property owner would not be automatically dismissed in the event of a licensee agreement with an ANC.

Another issue to be addressed in Bill 20-902 concerns what happens to liquor-licensing "settlement agreements" when an establishment moves. Currently, Moosally said, settlement agreements run with the liquor license. However, if an establishment moves, the old settlement agreement may be inappropriate. An example given at the meeting was if an existing settlement agreement included language about the use of a second floor of a building, and then a licensee moved to a new location with only one floor.

Another change, Moosally said, would concern "what happens when a licensee doesn't show up for a hearing". This would be addressed in the rule change. During the liquor license protest process, there are many hearings, held during daytime working hours. If a licensee shows up for a hearing but a protesting group doesn't, often the protest is permanently dismissed. On the other hand, if a protesting group shows up but a liquor licensee doesn't, the hearing is often rescheduled. Proposed amendments could change the law rules so that the two parties are on a more equal footing in this respect.

Under the projected change, "the settlement agreement does not move to a new location," Moosally said.

"Any time you're moving to a new location, you have to be placarded," Moosally  said, meaning, there must be a 60-day period when the establishment displays a large placard, inviting public comment, in a highly visible space at its existing or possible future place of business.

Yet another issue is liquor license "safekeeping". Unused liquor licenses sometimes stay in a state of safekeeping for years. The new law rule would make it easier for ABRA to revoke long-unused liquor licenses.

Another proposed change would amend certain details involving noise violations. As it stands now, an establishment with a liquor-license can only be cited once every 30 days for noise violations. The change would mean liquor licensees could be cited more frequently.

Noise from liquor licensees was the subject of much discussion at the meeting. The inter-agency noise task force, which started in March and includes members of ABRA, the Department of Consumer and Regulatory Affairs (DCRA), and the police, is still in operation, Moosally said. It is operating from 10pm to 3am on Fridays, Saturdays, and "some Sundays". During those hours only, the public can contact the task force with noise complaints at 202-329-6347.

Neighborhood residents told Moosally the process to force liquor licensees to obey noise regulation was still too slow and cumbersome. Neighbors with complaints often had to take multiple days off work over the period of more than a year, at the end of which the offending establishment might have to pay a $250 fine.

The result, one local resident said, was that one habitual noise violator in a neighborhood would turn a community against all restaurants. Any new establishment, no matter how well intentioned, would find itself fighting its neighbors every step of the way, since the neighbors felt that, once an establishment received a license, the establishment could do as it pleased.

"We'd like to see an ABRA starting violation at $1000," the resident said.

ANC2F Commissioners John Fanning (district 04) and Jim Lamare (05) were at the meeting, as well candidates for ANC2F seats in the November election. Fanning is the chair of ANC2F's liquor-licensing affairs committee.

The next scheduled meeting of the full ANC is on Wednesday, October 1, at 7pm, at the Washington Plaza Hotel (10 Thomas Circle).

Thursday, September 18, 2014

Beau Thai Liquor License: How Early is Too Early?

At its regular monthly meeting September 1, Advisory Neighborhood Commission 6E/Shaw voted to endorse the application for a liquor license for the new branch of Beau Thai. The restaurant will be located in the new Jefferson MarketPlace development at 1550 7th Street NW. It is moving from its current location at 1700 New Jersey Avenue NW, at R Street, also in Shaw.

Beau Thai's future home earlier this year (photo credit below)
Steven Whalen of Veritas Law Firm presented for the management of Beau Thai. Whalen said the restaurant will have 99 seats and a total occupancy of 120. There will be a 24-seat outdoor cafe.

Beau Thai will be located in ANC6E district 01. ANC6E Chair Alexander Padro is the Commissioner for that district. Representing the ANC, Padro and Beau Thai have signed a "settlement agreement", which at the time of the meeting was pending approval by DC liquor-licensing authorities. Padro characterized the agreement as "standard".

As a result, the permitted operating hours of the new restaurant will be the same or similar to its neighbors. For example, the outside patio will normally open at 11am. It will stay open until 10:30pm weekdays, and until 11pm weekends. There will be no live music. The inside hours of operation will be the maximum normally allowed by DC law, that is, until 2am weekdays and 3am weekends.

The settlement agreement also allows alcohol consumption at 8am. A neighbor noted this detail at the meeting. She had observed it on the mandatory liquor licensing placard on the future site of the restaurant.

She called this "much, much too early in the a.m."

"If we don't have enough alcoholics, we will have enough alcoholics," she said. "That's like an invitation."

There followed a long discussion in which the neighbor attempted unsuccessfully to get the morning hours reduced. Whalen repeated there was no intention to serve alcohol early in the morning on a regular basis, but the restaurant wished to leave its options open in case it decided, for example, to serve brunch.

Commissioner Rachelle Nigro (district 04) asked if it was possible to amend the signed agreement so that liquor service could not start until 10:30 or 11am, "whenever normal lunchtime is". Whalen and Padro were dead-set against it.

"We already have an agreement negotiated. I would not support any changes to it," Padro said.

Nigro said there was a "neighborhood concern" about the hours.

Padro said one person (i.e., the person protesting at the meeting) "was not a neighborhood concern".

"I'm not the only person who's concerned about this," the neighbor said.

Padro directed the neighbor to bring up her concern at the ABRA hearing about the liquor license. The neighbor promised to do so.

Nigro recommended that the neighbor sit down with the restaurant owner first.

The neighbor said she would "follow through on that".

The vote on Padro's motion to endorse the liquor license request was 5 to 2. The two "no" votes were Commissioners Frank Wiggins (district 03) and Marge Maceda (district 05).

ANC6E records its meeting in their entirety and posts them in half-hour chunks on its YouTube channel. One of the half-hour chunks (part two of five) -- during which part of the discussion above took place -- was missing when I last looked. However, most of the discussion above can be viewed on part three of five, starting at the beginning of the video, here.

See previous coverage of the Beau Thai's infra-Shaw move from the blogs BadWolf DC here and Popville here.

Beau Thai has another branch in Mount Pleasant.

(Photo credit: BadWolf DC. Used by permission.)

Friday, July 11, 2014

ANC1B Fails to Achieve Quorum Due to Rain

Advisory Neighborhood Commission (ANC) 1B/U Street failed to achieve a quorum last night at its regular monthly meeting last night (July 10). ANC1B will try again next Thursday, July 17, at 7pm, at the Banneker Recreation Center (2500 Georgia Avenue NW), according to ANC1B Chair James Turner (commissioner for district 09).
(Image courtesy Borderstan)

The skies opened up a little after 6:30pm last night. This apparently kept most of the commissioners away from the 7pm meeting. I was also delayed and did not arrive until 8pm. The meeting was just breaking up as I arrived.

I saw the following commissioners at the aborted meeting: Turner, Marc Morgan (district 01), Juan Lopez (district 07), and Zahra Jilani (district 12). Other commissioners may have been there as well.

Some of the topics scheduled to be discussed on July 17 include:
This is the third time in eight months ANC1B has failed to achieve a quorum at its regularly scheduled meetings -- see SALM blog posts for March 10 and December 9, 2013.

Tuesday, June 24, 2014

Eleven Market to Become 11th and U Wine and Spirits

The proprietor of Eleven Market (1936 11th Street NW) came before the liquor-licensing affairs committee of Advisory Neighborhood Commission (ANC) 1B/U Street on June 18 to announce her intention of changing the store from a convenience store that sells beer and wine to a liquor store. The planned name for the store is 11th and U Wine and Spirits.

1936 11th Street has a large front courtyard
The store will need a change in liquor license class. The store has a Class B license, which permits grocery stores to sell beer and wine. The store will need a Class A license, which permits liquor stores to sell beer, wine, and spirits.

The proprietor was present at the meeting, but she let her representative, Jeff Jackson, do most of the talking. Jackson is a former investigator with D.C.'s Alcoholic Beverage Regulation Administration (ABRA) who now consults on liquor-licensing matters.

Jackson said Eleven Market had been a good neighbor. It had had only three ABRA violations in 15 years, he said.

On-line records show Eleven Market paid $750 in fines in 2013 in regards to two charges stemming from the sale of rolling papers in violation of a settlement agreement it had with ANC1B.

In exchange for support for a liquor-license conversion, Jackson offered the committee a guarantee that 11th and U Wine and Spirits will not sell single cans of beer. (The sale of single cans of beer is illegal in a large portion of D.C., but not in Ward 1, where the store will be located. The single-beer ban has led to the appearance of two-packs of beer in D.C.)

Some of the committee was not impressed with the offer, and felt the establishment should deal with other issues.

"The concession is pretty weak," said a committee member. "The perception is there are a lot of public safety issues."

Specifically, the property has a large open area in the front.

"This property has a tremendous setback. It looks like a patio," said ANC Chair James Turner (Commissioner for district 09)

Loitering in the front area is a problem, a committee member said.

Jackson didn't think there was any way the establishment could prevent people from congregating in front of the store.

The proprietor said the building was located in the Greater U Street Historic District. As a result, it is impossible to get permission to make the changes to the exterior of the building that would, for example, allow the store to move up closer to the front property line.

The proprietor plans a renovation to the interior of the store. She told the committee about it. But committee members were more interested in the exterior front. They wanted to talk about steps the store could take to make it less "inviting".

"Would you consider putting up something less comfortable?" one asked.

Someone advocated increased security lighting, like other liquor stores in the area have.

Another committee member mentioned that ANCs have a grant program. It might be possible for the store owner to apply for a ANC grant to defray the cost of increased security lighting.

The proprietor has not yet completed the application, so there was no motion or vote on the matter at this meeting. The proprietor did not specify when she thought she would return for ANC endorsement.

As the petitioners gathered up to leave, a committee member again asked the proprietor to consider some steps to "mitigate some of the loitering issue."

"You haven't heard anything saying we are against small business," said ANC Chair Turner. "There are lots of reasons why they can't do anything about the loitering."

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.

Monday, June 9, 2014

Ghana Cafe, Catalyst of Logan Circle ANC Lawsuit, Closed

Ghana Cafe yesterday (June 8)
Ghana Cafe (1336 14th Street NW), whose liquor-license application was at the center of a recently-filed lawsuit by a local resident against Advisory Neighborhood Commission (ANC) 2F/Logan Circle (see SALM blog post of June 5), has apparently closed.

Since Friday (June 6), the restaurant has been dark, complimentary newspaper reviews have been removed from the windows, and the interior furniture has been removed or overturned. There was no additional information on the restaurant's web site.

Neither side in the lawsuit wished to comment on the Ghana Cafe's closing for this story.

Thursday, June 5, 2014

Logan Circle ANC sued over FOIA Request

A resident of the 1400 block of Rhode Island Avenue has sued the DC government, alleging that Advisory Neighborhood Commission (ANC) 2F/Logan Circle has failed to adequately provide documents in response to a Freedom of Information Act (FOIA) request.

Detail from the complaint document
Documents (23-page .pdf) filed on June 2 at the Superior Court of The District of Columbia by James Kane allege ANC2F failed to search their records pertaining to the liquor license of the Ghana Cafe (1336 14th Street NW). It asks the court to declare DC in violation of FOIA, to force ANC2F to release the documents (mostly emails), and to order reimbursement of legal costs.

In response, ANC2F Chair Matt Raymond has issued a press release calling the lawsuit "frivolous" and "rife with demonstrable falsehoods".

Backstory

The FOIA request stems from a pair of votes (see "Old Business", near the end of this web page) by ANC2F in March 2014 in support of Ghana Cafe's request to terminate a 2009 settlement agreement. The 2009 agreement is a multi-sided one, between Ghana Cafe, ANC2F, and neighbors. At the March 2014 meeting, ANC2F voted to enter into a new agreement with the Ghana Cafe, independent of other parties. The new agreement is both more lenient than the existing agreement and similar to agreements signed by their newer neighboring competitors. However, it will not come into effect until 2016, when the older, stricter agreement will sunset

In April 2014, Kane filed a FOIA request, asking for all documents, physical or electronic, that contained the address of the restaurant, the name of the ANC2F liquor-licensing affairs committee, the name of the DC liquor-licensing authority, or the terms "Ghana Cafe", "Settlement Agreement", "resolution", among others, between April 1, 2013, and April 22, 2014.

In his press statement, Raymond says he found "literally thousands" of documents satisfying the criteria. Raymond suggested a narrowing of the criteria due to the many hours it would take to process the documents.

"Neither Kane nor his attorney responded to Raymond’s good-faith offer to comply, instead taking the matter directly to court," Raymond's press statement says.

Kane's court filing quotes a May 14, 2014, letter from Raymond, asking for an extension:
Your request happened to arrive at the same time the expectations and obligations of my day job have been more extreme than at any other time during my tenure here. Multiple projects and events converging within the past couple of weeks necessitated days often lasting 14 to 16 hours.
(ANC Commissioner is a voluntary, unpaid position. Commissioners usually have paying daytime jobs. Raymond's Linked-in profile says he is Senior Director of Communications at International Food Information Council Foundation.)

In a May 29, 2014, letter (also quoted in the court filing), Raymond said "ANC2F is unable to respond to the totality of your request", due to the scope of the request and lack of paid staff. Raymond urges Kane "to resubmit your request with a far greater degree of sufficient particularity".

Lawyer for the plantiff responds

Kane referred a request for comment to his lawyer, Don Padou.

In a phone interview, Padou said the decision to begin legal action now stems from ANC2F's decision to reject the FOIA request in its entirety.

"He could have produced some documents to show that they were operating in good faith," Padou said. "Instead, he just denied the entire FOIA request without producing anything."

Padou was unsympathetic to the claim the FOIA request was excessive.

"If they don't have the resources to comply with the FOIA request, that's not my client's fault," Padou said. "DC government has an ANC office. If the ANCs can't comply with FOIA requests, they should staff their office to make compliance possible."

ANC2F had a regular monthly meeting last night (June 4). ANC Chair Raymond was not present. The lawsuit was not mentioned during the first 90 minutes of the meeting, after which I left.

ANC2F's dealings with Ghana Cafe and its neighbors were the subject of previous SALM blog posts on February 14, 2014, and December 20 and October 10, 2013.

Friday, May 16, 2014

637 Florida Avenue: A Pizza Restaurant or a Nightclub?

On May 1, Advisory Neighborhood Commission (ANC) 1B/U Street voted to protest the tavern license application, with endorsements for entertainment, dancing, and cover charge, for an as-yet-unnamed establishment to be located at 637 Florida Avenue NW.

637 Florida Avenue in May 2012
Two members of the public came to the May 1 meeting voice their opposition to the liquor license, but no one from M & I, LLC., the aspiring proprietors of the establishment, was at a meeting. It was reported the M & I, LLC., were looking for a rooftop deck that will operate until 2 in the morning. Neighbors were concerned there would be music you could hear outside the establishment after 11pm.

ANC1B is working on a settlement agreement with M & I, LLC., which may specify, among other things, hours of operation and noise control measures. However, at the time of the meeting, no agreement had been reached.

637 Florida Avenue is in ANC1B district 01. The ANC Commissioner is Marc Morgan. Morgan told the ANC he supported the protest. The vote was unanimous with two abstentions.

Earlier committee meeting on M & I

ANC1B's liquor-licensing affairs committee had previously voted to recommend a protest to the full ANC. On April 16, the committee heard from the prospective owners of the establishment through their attorney, Andrew Kline of The Veritas Law Firm. Kline represented the establishment as a pizza restaurant with music, but members of the community voiced the opinion that the establishment would really be a nightclub.

Some of the partners of M & I, LLC., are also owners of the nearby Flash Nightclub (645 Florida Avenue). Neighbors told the committee Flash Nightclub is the source of loud music and is not responsive to neighbors' requests to turn it down.

"Every night Flash is open I hear noise," one said.

Kline told the committee the establishment was seeking a capacity of 450. He also said there would be a roof deck with walls on all sides.

The committee asked how many seats would be on the rooftop desk.

"As many as we can," Kline answered.

Kline said the owners planned to use a series of small, evenly-spaced speakers, facing inward, to keep the music inside the area of the roof deck.

The committee asked for a seating plan, but was told it was "still being developed."

The motion to recommend a protest passed unanimously.

"We're not trying to block the business from opening," said liquor-licensing affairs committee chair Nick Baumann just before the vote.

After the vote, one of the owners of the new establishment, who had sat mostly silent during the presentation and vote, asked to speak. He said he had put more than five million dollars into the 600 block of Florida Avenue in the 25 years he has been in business there.

"I went bankrupt one time," he said, then added: "Not completely bankrupt."

"I invite all of you guys to come," he concluded.

"Everyone's happy to see new investment in the neighborhood," Baumann said in reply.

There will a preliminary hearing on the case of M & I, LLC., at D.C.'s Alcoholic Beverage Regulation Administration (ABRA) next Monday, May 19, at 10 am. The hearing will take place at ABRA's offices on the fourth floor of the Reeves Center (14th and U Streets).

Read a short article with pictures about M & I, LLC., from the blog Popville here.

(Photo credit: Google Street View)

Thursday, April 17, 2014

Shadow Senator Paul Strauss Represents Dino's Grotto at ANC1B

Dean Gold and Kay Zimmerman came before the liquor-licensing affairs committee of Advisory Neighborhood Commission (ANC) 1B/U Street last night (April 16) in support of their soon-to-open Shaw restaurant, Dino's Grotto (1914 9th Street NW). Speaking on their behalf was D.C. Shadow Senator Paul Strauss, in his day-job role as a private attorney. Gold and Zimmerman have recently closed their award-winning Cleveland Park restaurant, Dino's.

Strauss in 2007
"The emphasis is on fine food and a fabulous wine cellar," Strauss said of Dino's Grotto.

Dino's Grotto doesn't need any sort of approval or endorsement from ANC1B. They have a liquor license, which they acquired from the previous occupants of the space, Portico Restaurant. They don't plan to request any changes to the license, which will allow the restaurant to stay open until 1am Monday - Thursday, and 3am Saturday - Sunday. The restaurant is not licensed to use outdoor space. There was no indication the owners of Dino's Grotto were interested in outdoor service.

"The plan is to have the same business as Cleveland Park," Strauss said. The restaurant will even look the same as the Cleveland Park restaurant, since a lot of the furnishings will migrate with their owners.

Strauss explained that Dino's Grotto will operate under a tavern ("CT") license, not a restaurant ("CR") license. Holders of a restaurant license have the obligation of showing to D.C.'s Alcoholic Beverage Regulation Administration (ABRA) that at least 45 percent of their income derives food sales. A tavern license has no such obligation.

Dino's Grotto will be the sort of place, Strauss explained, that has a selection of high end wines, the price of which might be at least equal to the price of the food portion of the meal. Having a tavern license will free the owners from the worry that sales of expensive bottles of wine will cause the restaurant cross the 45 percent threshold, and endanger their liquor license.

Since there was no need for a vote, the liquor-licensing affairs committee thanked Strauss, Gold, and Zimmerman for coming to the meeting and wished them the best of luck.

Dean Gold promised "a very soft opening" in the near future.

"We look forward to it," said ANC1B Chair James Turner (Commissioner for district 09).

(photo credit: Wikipedia)

Wednesday, April 16, 2014

Doi Moi to Have 60 Outside Seats on S and 14th Streets

Advisory Neighborhood Commission (ANC) 2B/Dupont Circle endorsed a proposal that would give 60 outdoor seats to Doi Moi (1800 14th Street NW). The popular Southeast Asian restaurant at the corner of S Street received the endorsement at ANC2B's regular monthly meeting on April 9.

Doi Moi's patio facing S Street
Of these, 48 seats will be enclosed in a purpose-built patio (see photo) facing S Street. It is set apart from the sidewalk and will have outdoor umbrellas.

The other 12 seats will be on the 14th Street side of the restaurant. There will be six "two-tops" running along the east wall of the building, starting at the south corner.

There was some discussion about the amount of space this would leave on the sidewalk for pedestrians. On paper, DC requires a pedestrian space ten feet across. At the meeting, Commissioners noted this requirement was no longer being enforced outside the downtown business district.

There is a bicycle rack, a lamp post, and a tree with knee-high railing on the sidewalk on the 14th Street side of Doi Moi. The addition of outdoor tables may create a pedestrian choke-point. ANC2B, as part of its endorsement of the plan, will urge  the District Department of Transportation (DDOT), which oversees public space managment, to make sure that the placement of tables is appropriate for pedestrian safety on 14th Street.

Doi Moi has a settlement agreement with ANC2B and a group of 29 neighbors (starting on page four of a .pdf here). Doi Moi's plan is "consistent with the settlement agreement", according to Commissioner Noah Smith (district 09). In fact, the settlement agreement states the exact amount of outdoor places Doi Moi may have, which is the same number as they are applying for.

Doi Moi is in Smith's ANC district.

The settlement agreement also states there will be no outside standing bar, no outside line for outdoor seating, and no outdoor seating hostess. Customers wanting outdoor seating will have to see a restaurant hostess indoors.

Outside service will end at 11pm Monday - Thursday and midnight on Friday and Saturday. There is no provision to extend hours on the evenings before holidays.

Commissioner Smith made the motion to endorse Doi Moi's public space application. It was passed by a unanimous vote of all the Commissioners present.

The request now moves on to DDOT for final approval.

See a .pdf copy of the letter about Doi Moi's outside space that ANC2B sent to DDOT's Public Space Committee here.


Friday, April 11, 2014

Le Diplomate to Host White House Correspondents' Dinner After Party

Attorney Steve O'Brien and William Washington, General Manager of Le Diplomate restaurant (1601 14th Street NW), came before Advisory Neighborhood Commission (ANC) 2F/Logan Circle last night (April 10) to ask for endorsement of a one-day change in operating hours.

Late nights coming to 14th and Q
Le Diplomate wishes to stay open until 5am Sunday, May 4, so it may host a White House Correspondents' Dinner after party. The dinner will be hosted by The Atlantic magazine. It will start at midnight, after the White House Correspondents' Dinner itself on the evening of May 3.

Le Diplomate's settlement agreement (11-page .pdf here) states that it must stop operation at 1:45am on weekends. For this one time only, Le Diplomate will ask to be allowed to serve alcohol until 3am, and continue service until 5am.

Although Le Diplomate has a large outdoor space, William Washington told the ANC all service would be indoors.

The motion to endorse the request passed unanimously. O'Brien and Washington asked for a letter as soon as possible so the request can move on to D.C.'s liquor licensing authorities.

Thursday, April 3, 2014

ANC6E Endorses Longer Opening Hours for Dacha Beer Garden

At its regular monthly meeting on April 1, Advisory Neighborhood Commission (ANC) 6E/Shaw endorsed longer opening hours for Dacha Beer Garden (1600 7th Street NW).
This mural presides over Dacha Beer Garden.

Dacha Beer Garden sought three changes to its settlement agreement with ANC6E. Specifically, it wanted the ANC to
  • remove restrictions on opening hours
  • allow the Beer Garden to close later (i.e., have weekend hours) on the Sunday evenings of three-day weekends and the days before holidays like Fourth of July
  • allow music to be played outside
Of these, ANC6E voted to endorse the first two suggested changes only. (Outside music was vetoed.) The endorsed changes will now go D.C.'s Alcoholic Beverage Control (ABC) Board for final approval. 

The motion to endorse the first two changes was made by ANC6E Chair Alexander Padro (Commissioner for district 01). Dacha Beer Garden is in his ANC district. The local civic association had no objections, according to Padro.

"The neighbors had absolutely no objections," Padro also said.

But some Commissioners were not so enthusiastic. If restrictions on opening hours were completely removed, Dacha Beer Garden would legally be allowed to start serving alcohol at 7am. A few Commissioners worried there would be early-morning drinking.

Dmitri Chekaldin, co-owner of the Dacha Beer Garden, told the ANC repeatedly he had no intention of serving liquor so early.

"We're not going to open the beer garden before noon," he said. "We're going to open in the afternoon."

So why, he was asked, was he seeking permission to open at 7am?

Chekaldin explained his eventual plan to build a structure on the site. (The beer garden is currently open to the elements.) Once the structure is built, the plan is to open at 7 and sell coffee in the morning, while continuing to operate as liquor-serving establishment in the afternoons and evenings. Chekaldin did not want to have to come back again to seek separate permission to open at 7am.

Some Commissioners were not convinced of the wisdom of granting 7am opening right away. In the end, there was a roll call vote. The motion to endorse Dacha Beer Garden's request for longer hours passed by a vote of 4 - 2.

Commissioners voting to support the request: Padro, Kevin Chapple (district 02), Marge Maceda (05), and Alfreda Judd (07).

Commissioners voting against: Frank Wiggins (03) and Rachelle Nigro (04)

Liquor-serving establishments often enter into settlement agreements with local ANCs and other parties as a condition of their liquor license. These agreements often dictate the hours an establishment can stay open, use of public space like sidewalks, method and frequency of vermin control, operation of valet parking, and other details of licensee operation that can have an impact on the neighborhood.

(Photo credit: flickr.com)