Friday, February 22, 2008

Rights, Priveleges, and Competition

One of the few things that are under the direct control of the ANCs is the ability to monitor and protest liquor licenses. Technically, any citizen group can do so, but the ANCs are particularly well organized about it. Functioning ANCs also have clout; though volunteer bodies with only an advisory governing authority, they are still political entities vital to the functioning of DC government.

The up-side is that whenever a restaurant, bar, or liquor store moves into a Logan Circle residential area (and what isn't residential anymore?), our ANC uses voluntary agreements to protect us from noise, garbage, and safety problems. We don't have to rely on future police action or complaints filed with ABRA to maintain our neighborhood, because our commissioners establish relationships with business owners and they get enforceable written agreements with them. The same process applies to alcohol-serving establishments who seek substantial changes in their operations. Voluntary agreements have helped us to keep rolling papers out of liquor stores, limit sales of single beverages, and act against noisy bars and clubs — all good and important stuff. Recently ANC 2F launched a protest against the renewal of El Sauce's license, which is an important action considering that the restaurant is the alleged center of some gang activity. Renegotiation of a voluntary agreement was also used effectively to respond to noise and safety problems created by Be Bar patrons.

All the same, I think that some ANCs have started over-reaching. The voluntary agreement isn't so voluntary. A business owner will either come to the ANC in advance of their application in order to negotiate an agreement, or they will face a protest until they choose to negotiate. Good luck to the business owner who goes up against a neighborhood group at an ABRA protest hearing.

Here are some neighborhood ABRA issues from the past year that I don't understand:

  • Queen of Sheba had to fight for about two years for their liquor license because a handful of Shiloh Baptist Church congregants protested. At first the protest group did not contain the minimum number of DC residents to meet ABRA's requirements. Rather than dismissing the protest, ABRA granted additional time for the protest group to organize.

  • Stoney's rubbed Commissioner Reed the wrong way during their VA negotiation and waited from May until October for resolution to the dispute. On the other hand Stoney's neighbor, Logan Tavern, who has a good relationship with Reed, had no problems gaining approval for their expanded dining area.

    In speaking informally with an owner of Stoney's, Mr. 14th & You and I heard him complain that the standard VA in the Ward 6 ANC where Tunicliff's is located is much simpler than the standard VA for ANC 2F. If ABRA views protests from all ANCs equally (and I don't know for certain that they do), and the VAs aren't so voluntary, some establishments are effectively held to different liquor "laws" than others.

  • Our ANC and others seek to prevent the sale of single alcoholic beverages, which I support. On the surface, this makes sense; who wants to promote anyone drinking a cold one out of a paper bag on the street? However, ANC 2F granted an exception to Whole Foods so that they could sell their mixed six packs of gourmet beers. Across the city in Ward 6 Harris Teeter faces significant barriers to a similar request for exemption. I could go either way on arguing the fairness of the differing ANC standards especially as single sales are completely legal under District law.

  • There are no time limits for negotiations of voluntary agreements or protest hearings. In ANC 2F I have seen Stoney's and the Playbill Cafe come to ANC meetings for months in a row as provisions of the agreement are hammered out. Within reason, our busy volunteer commissioners could meet with a license applicant as infrequently as once per month to negotiate the agreement. For an existing business, this process is not likely to consume too much time. A new or expanding business could, however, find their opening delayed, a situation that really strains start-up capital. As well, ABRA meets infrequently to review license applications. Any protest that goes to an ABRA hearing can also take months to resolve. Dante of the Black Cat estimates that his potential plans to build a rooftop deck could be tied up in protest hearings for well over a year.
These events lead me to consider myriad questions about alcohol policy. Is the VA and protest process anti-competitive? Given the economic realities of restaurant ownership, should a liquor license be treated as a right or a privilege? How do we balance the concerns of business owners against the concerns of residents? After all, some business owners are also part of the ANC 2F electorate. How do we protect any business from community associations or ANCs that act capriciously against certain businesses? In other words, can we prevent overwrought protests and unfairly restrictive VAs from being used in a prejudicial manner? As I mentioned before, the license application process exist for a reason and does bring about some positive actions. I sometimes worry, perhaps unnecessarily, that the ANC's alcohol policy and ABRA protest process are too subjective to be truly fair.

Commissioner Reed, chairman of ANC 2F, has formed a committee to review and revise our alcohol policies. He may just be representing the views of the commissioners, but I feel like he is particularly vigorous in his protests against Logan Circle bars and restaurants. He also made a comment in the last meeting that concerned me. In the context of the Be Bar VA negotiation, Commissioner Dyer asked if there was a provision in ANC 2F's alcohol policy that prevents the commission from limiting one establishment's hours more than limitations place on another establishment within 1000 feet. The implication being that treating one differently from another in the immediate area could be anti competitive. Reed made a statement, which though I can not remember verbatim, I tool to mean that he intends to reverse such a policy if indeed it is in place. If you have any thoughts on the matter, share them with Reed at creed{at}kgrmlaw{dot}com.

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