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Long-Simmering Hank’s Oyster Bar Dispute Awaits ABC Board Ruling Following Recent Rehearing Mandated by DC Appeals Court

Accompanying images can be viewed in the July 2912 issue PDF


By Anthony L. Harvey

Reported sightings of Mayor Vincent Gray having dinner at Hank’s Oyster Bar on July 5th and giving encouragement to owner and chef Jamie Leeds reignited community interest in the continuing battle of nearby neighbors opposed to Hank’s outdoor expansion and the aftermath of the overturning by the DC Court of Appeals of the Alcoholic Beverage Control (ABC) Board’s dramatic granting of Hank’s petition to terminate its five-year old voluntary agreement restricting, among other things, its hours of operation and the number of seats in its highly successful restaurant and on the outdoor patio in front of the Q Street establishment.

Praised by the Dupont Circle Advisory Neighborhood Commission (ANC), local restaurant critics (including that of this publication) and neighborhood patrons, Hank’s Oyster Bar and its award-winning chef and lauded proprietor, whose recognized business acumen and the stunning architectural redesign of her restaurant’s interiors have won her additional press recognition, have been bedeviled since 2005 with nearby neighbor objections to the establishment and its expansion.

To her credit, and to Hank’s contribution to the quality of the neighborhood’s restaurant ensemble and the District’s tax receipts, Leeds persevered and did what she had to do, including her reportedly reluctant signing of a voluntary agreement (VA) — she could not get an ABC board hearing on her license application without, apparently, a VA in hand. The subsequent success of Hank’s led to owner Leeds proposing an expansion of the restaurant into an adjacent, commercially rezoned row house.

The ANC and the ABC Board had set the stage for such expansion by approving three new lateral expansions of existing restaurants, Hank’s being one of two establishments the ANC had in mind. Nearby neighbors immediately protested Hank’s placarding — a legal requirement — of its application for a substantial change to its ABC license for this expansion, whereupon Hanks petitioned for the termination of its voluntary agreement with the neighbors, which, if successful, would render moot the question of the additional sidewalk seats requested for the added patio section that would be in front of the restaurant’s expanded premises and, for that matter, the other restrictions in the existing VA.

Further complicating the controversy is the existing Dupont Circle moratorium –which sets caps on such matters as the number of ABC licenses and restricts the number of expansions — and that of recommended limits set by earlier ANCs on the overall number of indoor and outdoor seats in ABC establishments in the moratorium zone.

Following a hotly contested October 13, 2010 ABC Board hearing, Hank’s petition for termination of its VA was granted in a Board order issued just a few weeks later, on November 3, 2010, whereupon well-known community activists Dave Mallof and Lex Rieffel, on behalf of neighborhood protestants and signatories to Hank’s VA, sued in the DC Court of Appeals to have the ABC Board’s termination order rescinded and Hank’s VA reinstated. Mallof and Rieffel were successful; their petition was granted; and the Court of Appeals remanded the case to the ABC Board “for further proceedings not inconsistent with this opinion.”

This brings us to last month’s highly anticipated ABC Board June 13th hearing on the Appeals Court’s reversal of the Board’s termination of Hank’s Oyster Bar VA. While the Board’s proceeding was well-attended and lasted almost four and a half hours, it was strangely anti-climactic and seemed solely to focus on legal technicalities.

These are often used to mask the real issues involved, which go to the heart of such questions of the nature and purpose of voluntary agreements, the representative nature of groups of individual protestants and that of neighborhood civic organizations — and their statutory empowerment to both protest and enter into voluntary agreements, the appropriateness of combination residential/commercial districts or other special zoning regimes in urban areas, and the effectiveness of the District’s alcohol licensed establishments enforcement agency, the Alcoholic Beverage Regulation Administration (ABRA).

The almost five hours of Board consideration revolved around the statutory language which establishes the procedures for terminating a voluntary agreement — a process to which not all parties are required to be in agreement. Three, so-called prongs are specified, the first two for amending a VA, and the third for amending or terminating.

The first requirement is that all parties are notified and that the party seeking the termination make an effort to meet with all other parties on the matter; stipulation number two requires the proponent to identify factors beyond its control or changes in the neighborhood that necessitate such a termination; and the third requirement, this for either a VA amendment or a VA termination, is that such a termination will not have an adverse impact on the neighborhood.

The statutory language in the section paragraph introducing these procedures states: “The [ABC] Board may approve a request of fewer than all parties [to a VA] to amend or terminate a voluntary agreement for good cause shown if it makes each of the following findings based upon sworn evidence.” The Board interpreted this language to require all three prongs to be satisfied for amending a VA but only the third prong to terminate a VA in its entirety. Accordingly, the Board ruled that Hank’s had satisfied that third prong and ordered its voluntary agreement terminated. The Appeals Court disagreed and ruled that all three requirements must be satisfied in order for the ABC Board to either amend or terminate a VA, and ordered the it be reinstated.

The second issue, one repeated time and time again by the attorney for the protestants, was the fact that Hank’s had not submitted a sworn affidavit at the earlier Board proceeding and thus the June 13th hearing, the attorney argued, could not proceed. The Board disagreed and the hearing proceeded. Hank’s presented an affidavit describing its efforts to meet with the protestants which they refused to do unless Hank’s would specify in detail precisely what their plans were for the proposed expansion of the restaurant, as required –- but something that is not stipulated as a condition for meeting. Hank’s then called as witnesses ANC Commissioners Jack Jacobson and Victor Wexler, in whose single member districts Hank’s is located or adjacent to, who testified in support of its position of having met the statutory conditions for having a VA terminated.

The protestant’s attorney, whose argument was that the hearing should not proceed, reluctantly presented his witness and the proceeding wound down to its adjournment at 9 pm, with Board Chair Ruthanne Miller assuring Hank’s proprietor Jamie Leeds that the Board would seek to issue a ruling as soon as possible, recognizing the fact that ABRA had shut down half of Hank’s patio seating as a consequence of the DC Court of Appeals ruling and the continuation of the neighborhood protestants’ action. (For reaction to this ABRA-ordered partial patio shutdown, see Leeds’ “open letter to the community” which was provided to The InTowner at the time, reproduced with an accompanying press release posted in our website’s Special Online Content section or by direct link, http://tinyurl.com/84n28rp.)

Proposed new rules for voluntary agreements was one of the hot topics at the July 12th hearing conducted by Ward 1 Councilmember Jim Graham, whose Human Services Committee has legislative jurisdiction over ABRA and the ABC Board. Graham has introduced legislation that, if enacted, would clarify and significantly restrict matters that could be included in voluntary agreements. It would further require groups of five protestants to each be resident within 400 feet of the establishment being protested and direct the ABC Board to dismiss competing community and any pending five individuals (or more) proposed voluntary agreements when an ANC’s VA is ordered for the same establishment. Other provisions in Graham’s draft legislation incorporate the remaining recommendations from his ABC working group. These recommendations were released by Graham on May 3, 2012.