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Alcoholic Beverage Control Board’s Enforcement of Number of “Seats” Requirements Overturned; Fallout Affects “Pub Crawl” Prohibitions

By Anthony L. Harvey

[Note: Photographs accompanying this new story in the print edition can be viewed in the full PDF copy in the Current & Back Issues Archive.]

Definitions continue to bedevil the deliberations of the District’s increasingly busy Alcoholic Beverage Control (ABC) Board. From the concept of a “pub crawl” to the question of what is meant by “capacity” — is it seats or patrons? — in determining the legal number of occupants in ABC-licensed establishments at any given point in time has continued to spawn fascinating and expensive litigation.

Defining a restaurant versus a tavern versus a nightclub continues to be in dispute — all of this within a context of increasing saturation of liquor serving restaurants and bars in congested urban mixed-use commercial and residential neighborhoods like Adams Morgan, Dupont Circle, 14th Street, U Street, and Cardozo-Shaw. All of this will now become more challenging and more complicating by a dramatic DC Court of Appeals decision last month overturning an ABC Board ruling that sanctioned Adams Morgan’s emblematic and popular Madam’s Organ for allegedly violating its ABC license by substantially changing its operation without prior ABC approval. The charge was based on what was determined to have been an increase in the number of 99 restaurant seats to 203 patrons overall throughout the establishment’s three floors and deck at any one time.

Madam’s Organ

The Appeals Court resoundingly endorsed the reasoning and testimony of Madam’s Organ’s exuberant restaurateur and live music impresario Bill Duggan, the Court finding that nothing in Duggan’s ABC approved license application “can fairly be read as describing or establishing a limit on the number of patrons (as opposed to a limit of the number of seats) that the establishment could have.” The Court emphasized its definitional contrast between seats and patrons. Madam’s Organ’s restaurant liquor license application, the Court observed, specifies a seating capacity of 99, corresponding with its Certificate of Occupancy.

Further, the Court noted that the ABC Board’s regulatory agency, ABRA, in its rules and regulations “nowhere states that a restaurant’s ‘capacity’ is the maximum number of patrons that may be in the establishment at any one time. Nor is there any indication in the record or in regulation [including published zoning decisions] or case law that a number of ‘seats’ specified on a certificate of occupancy is intended as a limit on the number of patrons that may be in an establishment at any one time.”n fact, the Court concluded, “the only evidence in the record about a limit on the total number of patrons that may lawfully occupy the establishment was Mr. Duggan’s testimony, which the [ABC] Board summarized in its Findings of Fact, that the establishment has a ‘legal capacity from the Fire Marshal for 393 patrons.”‘ And by agreement between the establishment and the ABRA investigator, most of the 203 patrons counted on the night of the alleged infraction were standing. The Appeals Court took further note regarding the underlying alleged ABC license offense — namely, a substantial change in operation without prior approval — that “Mr. Duggan testified that ABRA had inspected the establishment in prior years without finding an occupancy violation. The [ABC] Board did not discredit Mr. Duggan’s testimony. . . .” Thus on June 12, 2008 the DC Court of Appeals reversed the ABC Board’s Order imposing sanctions on Madam’s Organ of a five-day license suspension and a $500 fine.

Jack’s Restaurant & Bar

The impact of the Court’s ruling on Madam’s Organ’s occupancy dispute was immediate on cases pending before the ABC Board. The very next week, on June 18th, the Board heard the case of Jack’s Restaurant and Bar, located in the 1500 block of 17th Street, which included five alleged occupancy infractions, four of which were for having one-to-five more patrons in its seating area than allowed, according to Latif Guler, Jack’s co-owner, and the fifth of which involved the crowd that assembled on October 30, 2007 — as it does every year for the annual Halloween High Heel race. All five “alleged” occupancy infractions were dismissed in light of the Madam’s Organ precedent. Additional charges involved an alleged unauthorized change of ownership — which was dismissed by the Board as it learned that the matter involved a simple name change by one of Jack’s partners — and a single late hours infraction, for which Jack’s was sanctioned with a one-day license suspension and a $1,000 fine. While the DC Court of Appeals observed that the Board was not authorized in law or regulation to impose both a suspension and a fine — it’s one or the other, said the Court — it did not rule on this matter since the appellant had not raised the issue in the Madam’s Organ case. Guler estimates that Jack’s has been inspected at least 60 times over the past year.

Trio Restaurant/Fox & Hounds

In 58 years of operation as an ABC licensed restaurant establishment at 17th and Q Streets, owner George Mallios has received only one citation — on April 9, 2008, for an alleged ABC license infraction, the violation charged being that of having too many patrons in his outdoor patio area on the night of the October 30, 2007 High Heel Race. As the entire community has observed each Halloween celebration, the sidewalks and outdoor cafés are jam-packed with people for this once-a-year celebratory event. At a July 9th status hearing, the ABC Board dismissed the charge against Trio’s citing the same precedent as that of Jack’s. Trio’s track record of ABC liquor license infraction citations is now back to zero.

Chief Ike’s Mambo Room

Al Jirikowic, well-known actor, impresario, and proprietor of Adams Morgan’s Chief Ike’s Mambo Room, was cited last year for hosting the party celebrating the end station of the third annual charity shopping cart race, loosely called the “Idiot Ride” or “Idiot-a-Rod” — spoofing the name of the annual Alaska race of teams of huskies, a dead-serious ride unlike that of the fun-loving shopping cart event, which is in fact a race between teams of costumed revelers pushing shopping carts and registering at stopping points along a fixed route. The costumes tend to be bizarre and hilariously homemade. The race raises $2,000 or $3,000 annually in support of local area food banks. Stopping points are mostly at permitted public space sites; some are at pubs and teams are free to stop wherever they like.

Chief Ike’s was the final stop and Jirikowic was cited for violating his voluntary agreement with the Adams Morgan Advisory Neighborhood Commission (ANC) which contains a provision prohibiting participation in so-called “pub crawls.” Organizer Ellen Shorthill objects to the “pub crawl” characterization but allows that the lightning rod reaction by some in the community to her charity shopping cart race probably means that there will be no fourth annual “Idiot-a-Rod.” Jirikowic, a recognized expert on what constitutes a pub crawl, scoffed at such a designation for this kind of event, and the ABC Board concurred, dismissing the infraction charge at its June 25th public meeting, noting the absence of any legal or regulatory definition of what constitutes a “pub crawl.”

Adams Morgan (And Other) Anc Reactions

ANC Commissioner Bryan Weaver, who chairs the Adams Morgan ANC, expressed agreement with the ABC Board’s decision dismissing the charge against Chief Ike’s Mambo Room, but responded with alarm to the decision of the DC Court of Appeals ruling reversing the ABC Board’s decision on Madam’s Organ. “It guts efforts to bring ABC licensees into compliance with their respective voluntary agreements [concerning the number of patrons in their establishments at any one time].” Weaver further emphasized the ANC’s and community’s continuing concerns over such issues as fire safety, physical violence, and the weekend and late-night crowding and congestion in Adams Morgan in the areas of heavy concentration of alcohol serving restaurants and bars. ANC Chair Weaver also called for the ABC Board and ABRA to establish definitions for such concepts as “pub crawls” — definitions which could be included by reference in ANC and other voluntary agreements with ABC licensees. Weaver also weighed in with concerns over ABC establishments being granted extended hours — 3 a.m. on weeknights and 4 a.m. on weekends during the recently held Ethiopian Soccer Tournament — this being done without any prior notification to the community. Commissioners in the Cardozo-Shaw area expressed similar concerns.

The Court’s Conclusion Looking To The Future

The DC Court of Appeals footnoted the final page of its written decision as follows: “We need not and do not decide what action the Board may or may not take as a prospective matter. However, it is undisputed that the Board has authority to impose conditions for licensure.”