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City’s Alcohol Board Allows Live Music and Dancing for Two Mt. Pleasant Restaurants Previously Prohibited; Very Few Objections

By Anthony L. Harvey

In two dramatic rulings issued on April 23, 2008 by the District of Columbia’s Alcohol Beverage Control (ABC) Board, the provisions in two so-called “Voluntary Agreements” between ABC-licensed Mt. Pleasant restaurants and the Mt. Pleasant Neighborhood Alliance (MPNA) which prohibited two of those licensed establishments from providing live entertainment — including live music — and dancing for the participatory enjoyment of their patrons were struck down.

Located on the main commercial corridor of Mt. Pleasant Street between Irving and Lamont Streets, these two restaurants — Haydee’s and Don Jaime’s — also requested that their Voluntary Agreements with MPNA be replaced with ones developed by Hear Mt. Pleasant, a recently formed and extraordinarily diverse large community organization that strongly supports such First Amendment constitutional rights as freedom of expression, including artistic and musical entertainment like dancing and, especially popular in the neighborhood, mariachi bands.

The Mt. Pleasant Advisory Neighborhood Commission (ANC) weighed in as well with resolutions strongly supporting the requests of the two restaurant applicants, as did several other community organizations, including the Mt. Pleasant Business Association and the neighborhood’s Main Street organization, leaving MPNA in opposition to all but a limited form of entertainment — live music at a background level performed by no more than three or four musicians on a restricted basis during selected days of the week. MPNA also opposed patron dancing at any time in these two restaurants; MPNA also challenged the charging of any admission or cover charges.

In a nuanced and novel balancing act, the ABC Board declined to replace the MPNA’s Voluntary Agreement with that proposed by Hear Mt. Pleasant’s and the two restaurants. Rather, the Board revised and rewrote the provisions in dispute with language of its own; it then incorporated both the Board’s revised MPNA Voluntary Agreement and the one proposed by Hear Mt. Pleasant into the renewed restaurant liquor licenses for both Haydee’s and Don Jaime’s. In replacing the prohibition on live music with an entertainment endorsement to the license, the ABC Board also dropped the prohibitions in the superseded MPNA Voluntary Agreement prohibition on charging admission or cover charges.

Also dropped from these Voluntary Agreements were restrictions dealing with how Haydee’s and Don Jaime’s could sell their businesses — reflecting an earlier MPNA effort to “encourage” sales to non-liquor serving successor establishments or to deny successor businesses from obtaining ABC licenses, resulting, MPNA hoped, in a smaller number of ABC-licensed establishments in the neighborhood. While an earlier ABC Board found reasons for such provisions 10 or 11 ago (and in another MPNA Voluntary Agreement as late as March of 2007), the current Board does not. The vast majority of witnesses who testified both for and against the applicants noted the marked improvements in “peace, order, and quiet” in the neighborhood, with far less calls being made for police action against crime, public drunkenness, and disorderly conduct than in the past.

Orders in the ABC Board’s Rulings

Hours of operation for live entertainment, music, and dancing were the battleground through which the Board marched forcefully to forge compromises among Mt. Pleasant’s competing forces. The applicants’ initial requests for an entertainment endorsement during standard ABC hours of operation were withdrawn and in their place the applicants requested midnight closing be allowed Sunday through Thursday nights and 1:30 a.m. on on the weekends. MPNA’s compromise proposal “was for live entertainment to be allowed Tuesday through Thursday from 6 p.m. to 10 p.m. and Friday and Saturday from 6 p.m. to midnight; it did not allow for dancing at any time nor for an admission or cover charge or live entertainment on Sunday and Monday.

Several protestant groups of five or more persons offered a third compromise which tracked the language of recent MPNA voluntary agreements with Marx Café, Tonic, and Radius, which allow live music “consisting of no more than 3 musicians, and [which] shall be performed at a volume level that allows patrons to talk at a conversational level.” This background music can be performed at Sunday brunch between Noon and 3 p.m. and “on special occasions no more than twelve (12) times per year between the hours of 9:00 p.m. and 11:00 p.m.”

The Board found the entertainment hours proposed by MPNA and the protestant groups to be too restrictive and those of the applicants and Hear Mt. Pleasant to be too late at night. The Board, therefore, crafted compromise language by which approved hours for music and dancing at Haydee’s and Don Jaime’s to be until 11 p.m. Sunday through Wednesday; until midnight on Thursday; and until 1 a.m. on the weekend, with admission or cover charges allowed every day of the week.

The Board took note in its written order of “the testimony provided . . .  by Mr. [Todd] Pheiffer — of Pheiffer’s Hardware and Vice President of the Mt. Pleasant Business Association — that Mt. Pleasant businesses need more flexibility and [voluntary agreements] should not be overly restrictive.” The Board also emphasized its receipt of the ANC’s position, stating that it “took into account the position of ANC 1D in granting the applicants’ requests to have live entertainment, dancing, and a cover charge.”

Dueling press releases from MPNA and Hear Mt. Pleasant followed immediately upon the Board’s announcement and issuance of the orders in its April 23rd rulings. While both press releases understandably emphasized different issues and highlighted those upon which they perceived and claimed success, their respective headings and bold-faced content are revealing of what the respective organizations see as most important.

MPNA’s headline read, “MPNA Voluntary Agreements Remain in Effect and Not Terminated.” The first two paragraphs simply repeat this statement, with the second page providing an explanatory quote from MPNA’s President Laurie Collins that it “supports live entertainment and the ABC Board made a decision that balanced the needs of all parties involved. It is MPNA’s hope that these provisions will reduce the chances of these restaurants morphing into night clubs.”

Claudia Schlosberg’s press release for Hear Mt. Pleasant was headlined “Music and Dancing Return to Mt. Pleasant.” In the body of the release, Schlosberg noted the ABC Board’s actions on both the MPNA and Hear Mt. Pleasant Voluntary Agreements, asserting “a major victory to the groups and residents who have been working to return live music and dancing to the neighborhood: Don Jaime’s and Haydee’s Restaurants will be able to have music and dancing seven days a week.”