May 14, 2018
D.C. Alcohol Beverage Control Board
2000 14th St., N.W.
Suite 400
Washington, D.C. 20009
RE: Application of M&A Hospitality, LLC (Cork Wine Bar and Market) for Substantial Change (Summer Garden); Case No. 18PRO-00006.
Dear Chairman Anderson and Members of the Board:
We are writing to support the Motion for Reconsideration that a “Group of 5 or More Individuals” (Group) has filed in the above Case No. 18PRO-00006.
We understand that the Board has dismissed the Group’s protest based upon its view that D.C. Code §25-609(b) requires it to dismiss a Group’s protest if the ANC enters into a Settlement Agreement with the Applicant, even when the ANC is not a party to the protest.
We strongly disagree with the Board’s interpretation of this law. The Board’s interpretation allows a non-party to deprive a valid Protestant of the right to be heard. We do not believe that the City Council could have intended this illogical and unfair result when it enacted this amendment to the ABC laws. If this were the case, why would an ANC ever go through the formal Protest process? How can a “Settlement Agreement,” which settles issues among parties to a proceeding before the Board, possibly occur among non-parties? The Board’s interpretation cannot be logically sustained.
In addition, the Board’s novel finding lacks a limiting principle. How could the Board distinguish the instant circumstance from a situation in which an ANC already has a prior Settlement Agreement with an establishment that later seeks a Substantial Change and is protested, or if an ANC agrees with an Applicant to terms that have no nexus with the issues at dispute in the proceeding? As discussed below, that seems to have occurred in the instant situation.
ANC 1B is not a party to the protest in this case. It recently entered into a Settlement Agreement with the Applicant that the Board has approved. However, the ANC’s Settlement Agreement does not address the issues at dispute in the docket, specifically concerns regarding the Applicant’s trash storage plan and late-night hours for the summer garden.
The Applicant is proposing to convert a private service alley, located in the 1300 block of S St., N.W. that it now uses to store its trash, into a summer garden. The Applicant plans to store its trash in public space adjacent to their property that is directly across the street from S St. residences. In addition, the Applicant proposes to operate the summer garden with outdoor music until 1 a.m. on S-Th., and until 2 a.m. Fri. and Sat., hours which exceed those the Board has granted to licensed establishments on similar residential streets.
Further, SDCA was part of a group of Citizens Associations that had requested an interpretation from the Office of the Attorney General on this specific provision, regarding the disenfranchisement of a legal Party of 5 Protestants by an ANC that is not a legal party to a Protest. The OAG communicated to SDCA its determination, under this circumstance, the ANC cannot negate the rights of the legal Protestants. The OAG office has also informed SDCA that this fact is being communicated to the attorneys at ABRA. We trust that they will provide the Board with this new information.
We also are concerned about a number of procedural issues in this case. ABRA’s “Protest Roadmap” clearly states that a protest may be dismissed under only five specific circumstances:
- Applicant does not attend a hearing or make a good faith effort to contact the Protestants timely regarding Mediation.
- A Protestant or its Designated Representative does not attend a hearing or Mediation
- The Parties enter into a Settlement Agreement.
- The Applicant withdraws its application.
- Protestant(s) withdraw their protest.
The Applicant in this case violated circumstance (1) in two cases. First, by failing to make a good faith effort to contact the Protestants at all regarding Mediation, and second by failing to appear at the Status Hearing, and therefore should have been dismissed. We are concerned that the Roadmap process is being “selectively” applied.
Circumstance (3) states that a protest may be dismissed if “the Parties” enter into an SA with the Applicant. It does not provide for dismissal of a protest if a “Non-Party” enters into an SA with the Applicant.
We understand that the Protestant Group of 5 has filed a Motion requesting that the Board reconsider its Order and allow the Group’s protest to be heard. We urge the Board to grant the Group’s Motion so that the Group can present its case to the Board, as is their legal right.
Sincerely,
Joan Sterling, President Shaw Dupont Citizens Alliance (SDCA)
Chris Young, President Meridian Hill Neighborhood Association (MHNA)
Sara Maddux, President; Barbara Kahlow, Secretary-Treasurer West End Citizens Association (WECA)
W. Earl Williams, President, Federation of Citizens Associations of the District of Columbia