Posts about ABRA

within 400 feet of a public, private, or parochial primary, elementary, or high school; college or university; or recreation area operated by the District of Columbia Department of Parks and Recreation (DC Code §25-314(b)(1)).

The protestors, legally referred to as "protestants", thought this provision would damn the All Souls application. The same section of the DC Code, however, lists 10 exceptions to the 400-foot rule, including this important one:

The 400-foot restriction shall not apply if there exists within 400 feet a currently-functioning establishment holding a license of the same class at the time that the new application is submitted. (DC Code §25-314(b)(3))

The board found that the Mesobe market on 7th Street NW is indeed already within 400 feet of the school. The distance measurement, the board's ruling stated, "'shall be the shortest distance between the property lines of the places.' 23 DCMR §101.1 (West Supp. 2012)."

The existence of Mesobe within 400 feet of the school provides a precedent that satisfies the exception for All Souls, the board decided in its ruling.

With that argument down, the board addressed the general assertion that it is unsafe for children to view adults consuming alcohol. Here is where the board delivered its most scathing criticism of the objectors:

Finally, we reject the Protestants' unsubstantiated assertion that the mere sight of the Applicant's tavern will be detrimental to the students of Cleveland Elementary School... Indeed, if we accepted the Protestants' argument that the mere sight of adults in a tavern consuming alcohol is harmful to children, the Board would similarly have to ban children from:

1. entering restaurants that serve alcohol to patrons;
2. attending sporting events where alcohol may be consumed by adult fans;
3. eating dinner with their parents if wine is served with the parents' meal;
4. participating in religious ceremonies where wine is part of the service; and
5. walking through neighborhoods with large concentrations of liquor-serving establishments during the daytime, such as Adams Morgan and U Street.

The board further described the objection as "unworkable, unreasonable, and not in accordance with current societal practices."

There are a few important lessons from this case. The most important is that District boards don't always cave to the flimsily argued demands of a vocal few. A common complaint, especially among the business community, is that DC's various boards, such as Zoning Commission, the Board of Zoning Adjustment, the Historic Preservation Review Board (HPRB), the Old Georgetown Board, the ABC Board, etc., exercise their discretion in ways that are too often inconsistent or outright bizarre.

The most frustrating experience with these boards is encountering unsupported opinions. In cases before the HPRB, many opponents argue that a proposed building is "incompatible" with the historic district while they fail to elaborate why it is allegedly incompatible. Georgetown resident Topher Matthews explained this sentiment that I have also encountered when following historic preservation cases:

Time and time again, neighbors use the historic preservation design review process to object to the size of the project rarely out of any genuine concern for the preservation of the neighborhood's historic character but rather because they simply just don't like the project. The basis for the complaints would be no different than if the project were in a brand new development with no historic character: it blocks my view, it's too big, you'll be able to see into my garden, et cetera.

In the All Souls case, the school proximity argument failed to establish harm to students to a degree that would warrant killing off a fledgling local business. It is a non sequitur to many people that children are harmed by catching a glimpse of adults across the street sipping wine at 5 pm. Merely believing that something is true doesn't necessarily make it true. In rejecting this claim, the ABC Board rightly stood firm in the factual evidence presented to it.

The entire licensing process, which was unusually protracted in this case, certainly cost the proprietor of All Souls a hefty sum in legal fees. When the proprietor attended community meetings on his proposed license, he usually had his attorney with him to address the fine legal distinctions, especially as it applied to the somewhat complicated 400-foot rule.

In fact I pitied the man. All he wanted to do was open up his small businesses. His modest license request unleashed the histrionic vitriol of a few strident Furies who spoke as though he were defiling the sanctity of childhood itself!

The board ratified a voluntary agreement between All Souls and three neighbors uninvolved in the school-proximity protest. The text of this side agreement is not currently available, but if it is like most other voluntary agreements, it likely negotiated closing hours and restrictions on indoor music volume, not moral arguments about child psychology and societal vice.

For all the complaints about DC's regulatory bodies, the regulatory system worked rationally in this case. The board ratified the agreement with the neighbors willing to compromise. It rejected outright the protest of people who refused to believe the business should even exist.

The good news is that even the opponents who lost their case actually won. Cleveland Elementary School is a great school and will continue to be a great school long after All Souls has poured its inaugural beer. The conversion of the vacant storefront into an occupied business will deter the loitering and drug-dealing along that block of T Street and will remove a visible physical blight from the neighborhood.

The neighborhood and the school will both be better off once All Souls opens.

Cross-posted at Left for LeDroit.

Megan McArdle and Matthew Yglesias blame the government. Yglesias says that there's plenty of demand for bars and lots of vacant storefronts, but ABRA policies are "a sign to would-be entrepreneurs everywhere that their potential investments are much riskier than a superficial read of market conditions would suggest." McArdle says,

Punishing a restaurant owner for a liquor license violation with an open-ended maybe-we'll-give-you-a-license-maybe-we-won't delay is equivalent to giving someone the death penalty for a parking violation. Moreover, it punishes the neighbors and the employees right along with the owner.

Their arguments, though, ignore management's responsibility for the pickle they're in, and instead push the idea that the city should turn a blind eye to the situation rather than acknowledge any infractions. McArdle, Yglesias, a number of City Paper commenters, and others seem to believe we should simply let bygones be bygones and give Shaw's its license.

We'd like to see Shaw's obtain a liquor license. The building it occupies was vacant for years, and was an eyesore on Florida Avenue. Today, it's a handsome façade on the edge of the Shaw and LeDroit Park neighborhoods. And there's no doubt the restaurant struggled to stay open without a license. But the fact remains that the ownership is solely at fault for the delayed licensing.

To gain insight to the liquor licensing process, we spoke with Matt Ashburn, who owns Capital City Diner in the Trinidad neighborhood. Ashburn has had extensive experience dealing with city agencies to get his restaurant up and running. He's not afraid to speak his mind regarding problems that come from dealing with the city, but has nothing bad to say about ABRA.

Ashburn says they are the most professional, straightforward city agency he has dealt with, and challenged us to find one more customer-friendly. He described the agency as one that's "run like a business," and that the process to obtain a "stipulated" liquor license, which is the temporary license that an establishment can get if there is no community protest, is quite fast and simple.

ABRA employees are available to walk you through the process if you need help, and the 20-page application form (PDF) is only that long because of the helpful, step-by-step instructions embedded in it to make the process as simple as possible. Capital City Diner received its stipulated license by going before the local ANC (5B), requesting a letter of support, and then filing the application. The restaurant was able to legally serve beer after a 3-day turnaround.

Is Ashburn's experience typical or is ABRA's process an impediment? When it comes to fights with neighbors, Phil Lepanto has said ABRA is too reactive instead of proactive, and Natalie Avery argued ABRA needs to work to be more collaborative. But in this case, neighborhood opposition was not an issue.

Shaw's Tavern is located within ANC 2C. The minutes of their April meeting report a unanimous vote to provide a similar letter of support for the tavern.

It's not clear what happened between the April meeting, when the ANC gave their blessing for a stipulated license, and the July 16th "soft launch" that got Shaw's in hot water.

More than 3 months passed with no license, while Capital City Diner got one in just 3 days. What did the management do regarding the license in that 3 months? Why didn't they have a stipulated license as quickly as Capital City Diner did?

Since then, the ABC Board had a hearing on August 10th, with the understanding that a ruling would come down regarding the license within 90 days. In the end, we don't know how the ABC board will rule regarding the restaurant's liquor license.

If we had to hazard a guess, we'd wager that they'll be given a slap on the wrist and a license. All of the hand-wringing we're reading and writing about now could be a small bump on the road when looking back in a few months. But make no mistake, as chef John Cochran told Eater, "All I can tell you is that the alcohol board was making their decision and they had every right to take their time. Shaw's was in the wrong."

After over twenty years of experience dealing with moratorium zones, neither the City Council, local Advisory Neighborhood Commissions (ANCs), the Alcoholic Beverage Regulatory Administration, nor the Department of Transportation have moved to implement any rules or adjust fees to prepare for lifting any moratorium.

In 2009, when the East Dupont (17th Street) moratorium was last renewed, several members of the Alcoholic Beverage Control Board stressed that moratoriums were not designed to be a permanent solution to peace, order, and quiet, traffic and parking, and retail space issues. Board members implied that this last three-year extension of the Dupont East moratorium would likely be the last, and that the Dupont ANC should take other proactive steps to address noise, traffic, and economic development issues.

Below are some measures that city agencies, the Council, and the ANC could pursue to address the issues that led to the moratorium zone in the first place. This list is by no means exhaustive, and not all are politically (or financially) viable. But in Dupont, many would like to address the true issues that led to enacting these blanket moratoriums so that we are prepared when a moratorium is eventually, and inevitably, allowed to expire.

• Install additional Capital Bikeshare stations and personal racks to provide alternatives to cars, which produce traffic and parking issues.
  
• Direct the Homeland Security and Management Agency to study alternate emergency routes to reduce siren noise (if a re-designation would have no adverse effects on safety).
  
• Designate the main thoroughfare as a "No Buses" route to reduce heavy traffic and noise.
  
• Designate former moratorium zones as "retail incubation zones" and provide a tax credit for hard-goods retails or retail service providers, which would put non-licensed establishments on a more even financial footing with more profitable liquor-serving establishments.
  
• Increase the fees for endorsements (including entertainment endorsements, sidewalk cafe/summer garden) and overall license fees in post-moratorium zones. Utilize the revenue for additional ABRA inspectors. Post-moratorium fees could gradually reset to the normal fee after five years or so.
  
• Increase the fees for outdoor cafes in post-moratorium zones. Increased fees could go to more inspectors, or to install additional bike racks or other alternative transportation measures, such as spaces for Zipcars. Post-moratorium fees could gradually reset.

The East Dupont (17th Street) moratorium zone could be an excellent test case for addressing noise, traffic, and economic development issues through these and other measures in the absence of a moratorium. We're seeking input on these initiatives, and suggestions for additional activities that could take place at the council, ANC, and agency levels.

If successful, similar plans could be instituted in other moratorium zones around the city, bringing retail diversity, quieter streets, and consumer choices while addressing actual problems without a one-size-fits-all moratorium approach.

In most of our minds, the fire department is made up of guys that wear heavy coats and helmets and rush into burning buildings to save lives and use big hoses to put fires out.

But if that is all our fire department ever did, we'd probably have a lot more deadly fires. Our fire department also has fire inspectors. These are the guys that visit buildings when they are being built to make sure that there adequate means of egress, firebreaks between floors, and appropriate fire suppression systems.

Even more, they visit existing buildings regularly to make sure that extinguishers and alarms are functioning properly and they encourage people to practice fire safety and fire escape drills. And when buildings burn down, they show up and do studies to determine what went wrong so that they can learn how to prevent similar fires from breaking out in the future.

If we applied the ABRA structure to the fire department, it might be something like this:

A call comes into the fire department that there is a fire. They send someone out to see if there is a fire. They prepare a report that they saw a fire. On Wednesdays, the Fire Board meets to review reports of fire.

If the board determines that there is a recommendation that there is a fire, they create an order that says the fire should be put out. The firefighters then return to the scene and put out the fire.

The board then calls the building owner in to discuss how the fire happened. At this hearing, the building owner shows up and a local group of residents show up who think that bicyclists caused the fire. The board focuses on what the building owner can do to keep the bicyclists from starting more fires and gets him to agree to mitigating the threat of arsonist bicyclists.

Now, at the board's direction, a firefighter might occasionally drop by to see that all the bicyclist arson measures are in place and if they aren't he might write a ticket. So, in this building, bicyclists aren't allowed to have candles on their tables or order flambéed desserts. Meanwhile, two doors down, there is a bar called "The Rolling Torch" where bicyclists are encouraged to juggle burning tires and set off fireworks but since no one has ever complained about that, no one ever realizes it might be a problem.

4 weeks later, the building catches fire again. At the hearing this time, a bunch of neighbors show up to complain that the problem has nothing to do with arsonist bicyclists, but the fact that the owner keeps running his gas supply line under a giant replica of a flaming Olympic cauldron. But the board refuses to listen to them because they didn't file the appropriate paperwork with the fire board and therefore don't have standing in the hearing.

ABRA's mission is broad and vague

If an establishment requires an alcohol license of any kind, ABRA and the ABC Board have great latitude and control over that business' operations. These two government entities are essentially the primary regulators for every business that sells alcohol.

The Alcoholic Beverage Regulation Administration (ABRA) manages the administrative functions of handling paperwork, conducting investigations, and coordinating with the community. The Alcoholic Beverage Commission (ABC) Board works in concert with ABRA to evaluate issues about licensing.

As with the Taxicab Commission, mayors plug in politically-chosen appointees. This exacerbates our city's existing problems, many of which stem from councilmembers building ward-based fiefdoms, and the fact that political expediency often trumps good policy.

If an owner/operator has his or her license protested, the ABC Board hears the cases of the protestants and the licensee. If the owner/operator has an infraction of his or her license, the ABC Board will have a hearing to determine the severity of the issue and what should be done in response.

Working together, ABRA and the ABC Board control all aspects of an ABC license. Is it a restaurant, a tavern, or a nightclub? Can a retail store sell beer, wine, and liquor? What will be the hours of operation? Will there be dancing allowed? Can the establishment serve beverages outdoors? Can the establishment have entertainment? Has the licensee managed to get his trash removal vendor to come frequently enough?

These are all issues left to the discretion of ABRA and the ABC Board, and in many ways, it is astounding that an agency whose purpose is ostensibly to regulate alcoholic beverages has become such a dominant presence in our cultural and social landscape.

Broad calls for change

Laurie Collins, a long-time neighborhood activist and former ABC Board Member, proposed a set of reforms for ABRA and the ABC Board in a Georgetown Dish article. Specifically, she calls for removing ABRA from ABC Board supervision and making it accountable to the Mayor's office, establishing a professional arbitration panel within ABRA, and relying solely upon the agency staff to handle questions that arise with regard to licensing. She suggests that the ABC Board should exist in a capacity that serves as a venue for appeals that cannot be arbitrated by the staff panel.

She's right to call for reform. The structural deficiencies of the ABC Control Board that she describes in her article do indeed hamper the effectiveness and legitimacy of an important government agency. But reform needs to go even further.

As Natalie Avery pointed out, in addition to moving the ABC Board away from adjudication, ABRA needs to reorient itself to focus on mitigating and minimizing conflicts and negative impacts on the neighborhood or the community before they occur.

A high-quality urban environment requires a mix of commercial and residential uses. Invariably, the hospitality industry will be a component in a healthy neighborhood. Such businesses have an impact beyond the threshold of their establishments, whether it is the volume of music or crowds, transportation issues related to parking and sober travel, or the security of persons or property. Managing these impacts requires constant, professional engagement of regulatory agencies with stakeholders.

ABRA should grow and expand their outreach arm, which should connect business operators or prospective licensees with resources and training opportunities to help them better manage their impacts. Government can improve communication and facilitate conflict resolution when disputes arise.

There is a also a need for better coordination amongst agencies that play a role in managing and policing the hospitality industry, such as MPD, DDOT, DCRA, DPW, and FEMS. The proactive orchestration of agency, industry and community communication could go a long way toward reducing the need for a board with a heavy adjudicatory case load.

In addition, the community needs more centralized control from the Mayor's office so that city policy can be coordinated with the Office of Planning, other DC agencies that have planning roles, and economic development initiatives. The current ABC Board membership, which relies upon a political balance of Council proxies, ultimately creates an environment in which anything goes as long as no one complains too much.

There are areas of the city that are more appropriate for large crowds and late operating hours. There are also areas of the city where smaller crowds and more restricted operation is a better fit. Making those types of determinations is every bit as important as deciding on the placement of a bus-stop or a signalized crosswalk. In fact, such determinations are inherently interwoven, and yet our current approach decides on them piecemeal.

Fundamentally, we currently have in ABRA and the ABC Board a very strong regulatory body without a clear sense of purpose. It has led to an environment where businesses, residents and civic associations can't determine the likely outcome of any given decision.

Because of this, businesses and entrepreneurs can't manage the risk of opening without a liquor license; residents and civic associations feel that they must engage in an adversarial relationship in order to have their concerns addressed; and the agencies themselves must cope with a pseudo-judicial body that must weigh political concerns, as well as evidence and procedure.

There is no reason to have political appointees manage the hospitality industry. It can be effectively regulated simply by relying on professional staff, supported by arbitration panels. Moreover, ABRA is much more likely to have success in developing and maintaining a healthy and vibrant hospitality industry that can appropriately serve as a complement to locally oriented shopping areas, large entertainment districts, or tourist attractions by adopting a collaborative partnership with business, residents, neighborhood associations, and other government entities, instead of serving as an enforcement team serving at the beck and call of a politically established board.

Update: Councilmember Jim Graham asked for a response from ABRA director Fred Moosally. Here is Moosally's response:

ABRA's FY 2012 budget, with your Committee's leadership and support, contains a new community resource position intended to grow and expand ABRA's community outreach arm—as sought by the article. Additionally, the suggestions referenced by the article, including to: (1) provide prospective and current licensees with additional educational resources and training, (2) improve communication and facilitate conflict resolution between applicants and residents, including before disputes even arise, and (3) increase the level of professional engagement between stakeholders and the agency, were three of the major reasons for the creation of this position in ABRA's FY 2012 budget.

Take the Hank's Oyster Bar case. After seven months, thousands of dollars in legal fees, hours of hearings before the Alcoholic Beverage Control (ABC) Board, and unproductive battles waged in blogs and meeting rooms, what's the result? The ABC Board granted Hank's application and ordered the owner to mitigate noise concerns of the abutting neighbor.

What has this process achieved? It has cost the business owner, protesters, and the government an inordinate amount of time and money. It has torn apart the community and discouraged civic participation. It has further discouraged innovative businesses going through the hassle of trying to open a place in the District.

It could have been different. What if instead of playing referee in the legal battle around licensing, the Alcoholic Beverage Regulation Administration (ABRA) had offered the resources and staff time to help restaurateurs like Hank's owner Jamie Leeds plan ahead to prevent problems like noise, trash and security? Agency staff could work with operators to understand risks, identify potential concerns, and plan solutions to minimize the impact on neighbors.

For example, in the case of Hank's, going through such a process would likely have focused attention on the noise impacts on the abutting property owner. ABRA staff could have given Leeds a list of referrals to sound engineers and architects who are experts in noise mitigation and connected her to peers who had successfully managed noise problems. In addition to helping her to manage noise, ABRA staff could have provided resources to address other important issues that affect neighborhoods, including security, staff and server training, waste management, and community outreach.

As an experienced operator, Leeds doubtless had plans to address concerns about noise, safety, and trash management. But ABRA could have helped her ensure she had what she needed to invest in those plans. Instead, ABRA's role was solely to play referee in a contentious battle, forcing her to react to legal challenges rather than focus on preemptive solutions.

Defenders of the current system often claim that the only way to get hospitality operators to respect nearby neighbors is through the protest process. They argue that "Voluntary Agreements" are the only mechanisms a community has to keep businesses in line and prevent the neighborhood from descending into chaos.

What this argument ignores is the fact that operating responsibly with minimal impact on nearby neighbors (often potential customers) makes business sense. Staying off of neighbors' radar by managing trash, noise, and crowds not only keeps hospitality operators in compliance, it also helps them build a strong and devoted customer base.

Many hospitality operators, especially those seeking to open in mixed-use residential neighborhoods, build their business models around being a neighborhood gathering place. Complaints and negativity generated by neighbors and broadcast on blogs and review sites can seriously undermine an operator's reputation and bottom line.

The current system ignores these inherent incentives and instead treats hospitality businesses as problems constantly needing correction and control through rules, restrictions, and enforcement. But by helping operators plan proactively, ABRA could prevent many of the nuisances that bother residents, clog up hearing schedules, and take investigators' time away from more serious issues. Most residents would rather maintain a peaceful, clean, and safe neighborhood than punish restaurants for causing problems. The fewer resources are invested in legal battles, the more resources can be spent on minimizing negative impacts on neighbors.

Local governments across the country face the same challenges as we face here in DC, especially as city living and mixed-use development in urban cores becomes more prevalent. Instead of treating hospitality businesses as potential problems, some cities view the hospitality industry as an asset.

Many of these forward thinking local governments have worked with the Responsible Hospitality Institute, an international organization dedicated to fostering a best practices approach to managing vibrant and livable cities. RHI brings together an array of stakeholders, including BIDs, transportation officials, regulators, law enforcement, venue operators, and community leaders, to identify potential problems and coordinate solutions.

For example, RHI initiatives have included training for venue staff on responsible service and security, providing venues with referrals to sound engineers and security professionals, coordinating transportation services, and working with law enforcement to manage crowds and nightlife issues.

Cities around the world have worked with RHI to develop successful programs to better manage hospitality zones and mixed-use areas. For example, San Jose and Philadelphia have created an orientation for nightlife businesses that guides operators through the licensing process and shares best practices for noise, trash and security management. Seattle and Providence have established government staff positions to reach out to at-risk businesses and help them solve problems before they reach the level of enforcement. Edmonton and Gainesville have worked with colleges and marketing firms to develop patron responsibility campaigns aimed at addressing negative behavior from the consumer side.

Some DC leaders are moving in a similar direction and exploring innovative programs from other cities that integrate business assistance, training, and collaborative problem-solving into the regulatory framework. For example, from April to November of this year, Councilmember Jim Graham (Ward 1) initiated an ABRA Noise Task Force, on which I served when I directed the MidCity Business Association. The committee, which included agency staff, residents, and business representatives, was charged with finding better ways to deal with the issue of noise from ABC licensees. Though there was some discussion about the adequacy of current regulations, most of the conversations focused on how best to solve problems related to noise in a more proactive way.

In November, we presented a set of recommendations to the ABC Board that drew on lessons from other cities and included programs pioneered by the Responsible Hospitality Institute. For example, the Noise Task Force recommended that ABRA implement a Hospitality Business Orientation and an Early Assistance Team, two programs that involve a business assistance approach like the one described above.

The Hospitality Business Orientation would guide new ABC licensees through the licensing process and give them information about the best ways to manage issues like trash, noise and security. The Early Assistance Team, coordinated by ABRA but including mentors from the business community, would work with at-risk businesses, helping them to solve problems before problems reached a level needing enforcement.

The Hank's case shone a spotlight on how dysfunctional and destructive the current system has become. The current ABC Board's apparent willingness to take a hard look at VAs is encouraging to those of us who've seen the harm they've done to businesses, community relations, and economic development in many neighborhoods.

But it's important to realize that the current system, as flawed as it is, came about for a reason. There was a time when the ABC Board was barely functional, when ABRA enforcement was almost non existent, and when affected residents had practically no recourse when licensees flagrantly violated even the most basic rules. The current protest process and the over-reliance on VAs emerged in response to extreme dysfunction.

Criticizing the flaws in the current rules/enforcement-focused system does not mean going back to the days of "anything goes." Far from it. Our city needs clear rules and robust enforcement to ensure that our neighborhoods' mixed-use commercial strips are lively, lawful, and livable.

Residents need and deserve a role in this process. But residents and businesses also need government to provide more tools, resources and best practices to address real concerns and solve real problems instead of just being told to work it out through the protest process. The ABC Board and the DC councilmember who has oversight of ABRA in the coming year must step into the breach with fresh thinking to address concerns about balancing vibrancy with livability.

Natalie Avery was the Executive Director of the MidCity Business Association from 2008 to 2010 and worked closely with hospitality operators in the 14th and U area to foster a best practices approach to managing nightlife issues. In 2010 she co-chaired the ABRA Noise Task Force. Currently she is a stay-at-home mom in Mount Pleasant, happy to be raising her children near a commercial strip with lots of nightlife and dining options.