ABRA and the ABC Board

Office of the General Counsel Alcoholic Beverage Regulation Administration

ANC Training

February, 2013

Key Points of Presentation

• Overview of ABC Board and ABRA • License Classes • The Licensing Process • The Placarding Process and Notice • Protest Letter Requirements • Settlement Agreements • Board Orders • Noise Regulation • Freedom of Information Act and Grade DC • Contact Information

• The ABC Board is composed of seven members and they represent a cross-section of the District

• The Mayor, with the advice and consent of the DC City Council, appoints the Board members

• The Chairperson is selected by the Mayor, with the advice and consent of the DC City Council

• All appointments are for a term of four years, except appointments made for the remainder of unexpired terms

• The current members are:

Ruthanne Miller, Chair – Ward 3 Nick Alberti, Member – Ward 6 Donald Brooks, Member – Ward 1 Herman Jones, Member – Ward 8 Mike Silverstein, Member – Ward 2

The ABC Board

Who is ABRA?

The Alcoholic Beverage Regulation Administration (ABRA) issues and renews licenses that enable qualified businesses to sell and serve alcoholic beverages. ABRA monitors compliance with ABC laws and regulations and takes appropriate enforcement action when licensees violate the D.C. Official Code and the DCMR. When appropriate, ABRA proposes new laws and regulations regulating the manufacture, distribution, and sale of alcoholic beverages in the District. In addition to ANC Training, ABRA offers several educational trainings to licensees on maintaining books and records for food sales requirements and spotting fake IDs and preventing underage individuals from purchasing and consuming Alcohol. ABRA also offers new licensee orientation classes.

I. Licensing • Responsible for the review and processing of all ABC License applications • Ensures all applications meet standards for licensure and recommends

applications to Board for approval

II. Enforcement • Ensures licensees are in compliance in accordance with Title 23 & Title 25 of

the DC Official Code and the DCMR • Conducts regulatory inspections of licensed establishments • Issues citations for licensees or investigative reports found to be non-

compliant

III. Legal/Adjudication • Provides legal counsel to ABRA and the ABC Board • Manages the Board’s Hearing Calendar and Agendas • Handles adjudication matters for enforcement, staff settlements and

citations.

Agency Divisions

Types of License Classes • Class A – beer, wine, and spirits • Class B – beer and wine • Manufacturer A – beer, wine, and spirits • Manufacturer B – beer and wine • Wholesaler A – beer, wine, and spirits • Wholesaler B – beer and wine • Retailer A – store – beer, wine, and spirits • Retailer B – store – beer and wine • Class C/R – restaurant – beer, wine, and spirits • Class D/R – restaurant – beer and wine • Class C/T – tavern – beer, wine, and spirits • Class D/T – tavern – beer and wine • Class C/N – nightclub – beer, wine, and spirits • Class D/N – nightclub – beer and wine • Class C/H – hotel – beer, wine, and spirits • Class D/H – hotel – beer and wine • Class C/X – Arena, Multi-purpose facility (on premises without a stationery location.) • Caterers Licenses

• § 25-113a. License endorsements a) All license endorsements shall be placed on the

applicant's license. b) An on-premises licensee, except nightclubs, shall

obtain an entertainment endorsement from the Board to be eligible to have entertainment, a cover charge, or offer facilities for dancing.

c) An on-premises licensee shall obtain a sidewalk cafe endorsement or summer garden endorsement from the Board to be eligible to conduct business operations on a sidewalk cafe or summer garden, which may include the sale, service, and consumption of alcoholic beverages on outdoor public or private space.

License Endorsements

License Endorsements Continued

Sidewalk Café No on-premises licensee shall be permitted to serve alcoholic beverages on outdoor public space without obtaining a sidewalk café endorsement

Summer Garden No on-premises licensee shall be permitted to serve alcoholic beverages on private space without obtaining a summer garden endorsement

Entertainment No on-premises licensee, except nightclubs, may have entertainment, dancing, or charge a cover charge without obtaining an entertainment endorsement Entertainment" means live music or any other live performance by an actual person, including live bands, karaoke, comedy shows, poetry readings, and disc jockeys. The term "entertainment" shall not include the operation of a jukebox, a television, a radio, or other prerecorded music

Stipulated License - 23 DCMR § 200 A Stipulated License is a temporary license issued to an Applicant who has received a written letter of support from the ANC. It is issued to the Applicant only after the time that placards have been posted. Only on-premise establishments are eligible for a Stipulated License

The ANC’s Role The ANC must send to the Board its written letter of support (or no objection) which is issued by the ANC as a result of a duly noticed meeting, with a quorum present and a majority vote. SMDs may not solely support an Applicant’s request for a Stipulated License

Expiration of Stipulated License A Stipulated License expires when the Applicant either receives a permanent license or a protest is deemed valid at the Roll Call Hearing

Stipulated Licenses

Before the Application

Zoning The location is zoned for appropriate license

Measurements Most new license applications must be within appropriate distances of schools, libraries, parks, and recreation centers

DCRA Corporations Division If applying as an entity (Corp., LLC, LP), it must be registered with DCRA Corporations Division Permits If new construction, the appropriate permits have been issued or applied for. A liquor license can be approved before construction but not issued until all business licenses are provided

Applicant All applicants must be tax compliant; have no felony convictions within 10 years or misdemeanor convictions within 5 years

The Application Process

Three Phases

I. Application Acceptance The Licensing Specialist accepts the application, assesses the appropriate licensing fees, advertises the application and prepares placards for posting at the establishment to be licensed

II. Application Approval After the 45-day notice period, applications that have not been protested go to the Board for approval III. License Issuance The Licensing Specialist ensures that all documentation is complete, all appropriate business licenses and certificates are provided by the applicant and all entities and individuals are tax compliant before the license is issued

The Application Process Continued

I. New Application Acceptance

• Application Package is Complete • All documents supporting the entity and individuals accompany

the application package • Letter of Intent to Lease or Lease Agreement is submitted • Zoning Certification • Certificate of Good Standing • Financial Affidavit

II. Transfer Application Acceptance • No Substantial Change Form • Transfer Consent Form

The Application Process Continued

III. New Application Approval • Landlord Affidavit • Menu (if applicable) • Exterior pictures and interior diagram of layout • Police Clearances from all individuals (DC and jurisdiction in which

applicant resides if outside of DC) • Diagrams or photographs of area designated for Summer Garden

or Sidewalk Café

IV. New License Issuance • All appropriate licenses and certificates from DCRA and OTR • Certificate of Occupancy • Settlement Statement • Clean Hands Certification • Final Inspection conducted by Enforcement

The License Renewal Process

I. Renewal Application and License Issuance • Complete Renewal Application • Must be signed and notarized by Board approved officers • Provide evidence of Good Standing with DCRA Corporations • Entity and Officer must be Clean Hands Compliant • New license is then issued

II. Renewal Placards • Placards are posted for 45 days • License renewal period is not complete until placard period ends • Protests on renewed licenses do not impede operation of the

establishment – licensee can continue to sell and serve • Renewal process is complete after protests have been resolved * All Licenses are renewed every three years.

2013 Renewals

March, 2013

Class DR, CR, DH, CH, DX, CX, Caterers

September, 2013

Class DT, CT, DN, CN

The Placarding Process

III. New Applications

• 45-Day Notification Period • Placards must be posted and remain visible through the posting

and petition dates • Failure to post, or premature removal of placards, can result in

new placards with new dates extending the placard period • Applicants can request stipulated licenses with letter of support

from ANC while placards are posted

Types of Placards

Red Placards Renewal Applications

Orange Placards New Applications and Transfers to New Locations

Green Placards Substantial Change(s) to the Operations of the Establishment

Yellow Placards Suspension of License as a Result of an Enforcement Action

Substantial Change (Green Placard)

The Board has discretion to determine whether a proposed change to the nature of the operation is substantial

In determining whether a proposed change is substantial, the Board shall consider whether the proposed change is potentially of concern to the community

Factors the Board will consider:

1) The investigative history of the Licensee

2) The commercial or residential character of the neighborhood

3) Prior Board decisions regarding similarly situated neighboring licensed establishments

Notice of Application Proceedings (§ 25-421)

For the issuance, renewal, substantial change in operation, or transfer of a license to a new location, the Board must give notice to the following:

1. The Council 2. Any ANC within 600 feet of where the establishment is or

will be located a) The ANC office; b) The ANC Chairperson, at his or her home address of record; and c) The ANC member in whose single-member district the

establishment is or will be located, at his or her home address of record.

Notice must be published in the DC Register

Who Has Standing to File a Protest (§ 25-601)

• An abutting property owner; • A group of no fewer than 5 (3, if in moratorium zone) residents or property

owners of the District sharing common grounds for their protest; • A citizens association incorporated under the laws of the District located

within the affected area; provided, that the following conditions are met: (A) Open to all residents of the area represented by the association, and (B) Resolution concerning the license application has been duly

approved in accordance with the association’s articles of incorporation or bylaws at a duly called meeting, with notice of the meeting being given at least 10 days before the date of the meeting;

• An affected ANC; • The Mayor (when property owned by the District is within 600 feet of the

establishment); • Designated custodian of U.S. property within 600 feet of the

establishment; and • MPD

How to File a Protest (DCMR 1605.2)

• All protests must be in writing, must be received by ABRA before the end of the protest period, and must clearly state the grounds for the protest, i.e., why the matter being objected to is inappropriate under one or more of the appropriateness standards

• The written protest must be signed by an ANC Officer, and indicate that at a duly noticed meeting, with a quorum present, a majority vote prevailed

• The written protest may be scanned, faxed, mailed, or hand delivered, but all must contain an original signature

Appropriateness Standards (§ 25-313)

• Effect on the peace, order, and quiet of the neighborhood;

• Effect on real property values; and

• Adverse impact on residential parking needs and vehicular and pedestrian safety

Additional Considerations (§ 25-421)

• The proximity of the establishment to schools, recreation

centers, day care centers, public libraries, and other similar facilities;

• The effect of the establishment on the operation and clientele at such facilities;

• Whether school-age children using facilities in proximity to the establishment will be unduly attracted to the establishment; and

• Whether issuance of the license would create or contribute to an overconcentration of licensed establishments which is defined to mean the existence of several establishments that adversely impact a specific neighborhood

Catered Site Protest (23 DCMR 2008)

• A protest may also be filed against a location hosting licensed caterers (e.g., Stroga in Adams Morgan)

• A catered site protest must be filed within 30 days of the last event

• The Board may restrict the number, nature, and size of events involving alcohol at the site

• The procedures and rules for this type of hearing are the same as a protest hearing (See 23 DCMR 2008 for additional information about a Catered Site Protest)

ANC Great Weight

Statutory Requirement - § 25-609. The affected ANC shall notify the Board in writing of its recommendations, if any, not less than seven calendar days before the date of the hearing. Whether or not the ANC participates as a protestant, the Board shall give great weight to the ANC recommendations as required by Chapter 3 of Title 1

Of Note Although the Board is required to give ANC recommendations great weight, the Board is not required to follow the recommendations (or objections) of an ANC, although they must specifically address the positions of the ANC

Settlement Agreements

• The ANC may enter into a Settlement Agreement at any point in the Protest Process

• The Settlement Agreement must be signed by both parties and submitted to ABRA before the date of the scheduled Protest Hearing

• The Settlement Agreement runs with the license, even after the sale or transfer of the license to a new owner or location

• If an ANC submits a Settlement Agreement with the applicant, all protests against the application by any Groups of Five or More will be dismissed (this does not impact citizens associations or other ANCs)

Settlement Agreements Continued

• The terms of the Settlement Agreement must conform to statute and regulations and address those items that are enforceable by the Board

• A Settlement Agreement may be amended or terminated at any time during the life of the license with the consent of all parties and approval by the Board

Summary of Items Permitted in a Settlement Agreement

• The Omnibus Bill allows Settlement Agreements to address or discuss the following topics: i. Permitting/prohibiting entertainment and restricting hours

ii. Noise mitigation, including requirements to close windows/doors (except in ingress/egress)

iii. Restrict the location of indoor entertainment

iv. Noise mitigation for outdoor entertainment facilities

v. Litter control, including days/times of trash removal, vermin control

vi. Parking arrangements

vii. Incident logs

viii. Notice to cure

ix. Limitations of floor and occupancy usage, and minimum seat requirements

x. Hours restrictions

Summary of Items Prohibited in a Settlement Agreement

• The Omnibus Bill forbids the following provisions from appearing in a Settlement Agreement: i. Third party approval for ownership changes

ii. Notification of intent to transfer the license/ownership

iii. Prohibitions against changing the license class

iv. Requirement that the licensee change the license class before the sale of the license

v. Prohibition on applying for additional operation allowances, including changes of hours, summer garden, sidewalk café, entertainment

vi. Requiring the purchase of specific brands of alcohol or setting the price of alcohol

vii. Prohibitions on the age of patrons

Summary of Items Prohibited in a Settlement Agreement Continued

• The Omnibus Bill forbids the following provisions from appearing in a Settlement Agreement: viii. Requirements regarding the use of a specific company or business

ix. Requirements that create additional administration procedures beyond those required by ABRA or another District agency

x. Required attendance at ANC or other community meetings

xi. Requirements that the licensee provide financial benefits to the community, join a group, or hire local individuals

xii. Requiring the licensee to make documents available to the ANC or other groups

Settlement Agreements Continued

• Provisions that are not listed in the Omnibus Bill shall be reviewed by the Board to determine if they are in accordance with the law i. Such provisions should not exceed the scope of the Board’s

authority

ii. Violate the law (i.e., D.C. Human Rights Act, First Amendment, etc.)

iii. Take authority granted to the Board by Title 25 (i.e., the determination of whether something is a substantial change rests with the Board).

iv. Require the Board to take a certain action (i.e. Show Cause)

Amendment or Termination (§ 25-446)

Unless a shorter term is agreed upon by the parties, the SA shall run for the term of the license unless it is terminated or amended in writing by the parties and it is approved by the Board The Board may accept an application to amend or terminate a SA by fewer than all parties in the following circumstances:

• During the licensee’s renewal period; and • After 4 years from the date of the Board’s decision initially approving the VA

The Board may approve a request by fewer than all the parties to amend or terminate a SA if the applicant made a diligent effort to seek all the parties, the need for the amendment is caused by circumstances beyond the control of the applicant (ex. change in the neighborhood), and the amendment or termination will not have an adverse impact on the neighborhood

Types of Hearings (Protest Only)

Roll Call It is a non-adversarial proceeding held by the Board at which a list of applications for the licensing actions and the names of protestants who have filed an objection to the issuance, renewal, transfer to a new location, and any substantial change to the operation of a licensed establishment may be made is read to the public

Status It is a non-adversarial proceeding held by the Board at which the parties inform the Board of their progress in reaching a settlement

Protest The adjudicatory proceeding held by the Board, after receipt of a protest, to hear persons objecting to, or in support of, the issuance of a license

Resulting Board Orders

• Within 60 days after the close of the record for protest hearings held on new applications, the Board shall issue its written decision accompanied by findings of fact and conclusions of law.

• Within 90 days after the close of the record for all other hearings, the Board shall issue its written decision accompanied by findings of fact and conclusions of law.

• The Board shall publish and maintain a compilation of its decisions and orders

• A petition for reconsideration, rehearing, reargument, or stay of a decision or order of the Board may be filed by a party within 10 days after the date of receipt of the Board’s final order

Noise Regulation

• ABRA only has jurisdiction over ABC Licenses and can enforce: i. D.C. Code § 25-725

ii. 20 DCMR § 2700, et. seq.

• The Metropolitan Police Department’s Purview: i. 20 DCMR §§ 2700 to 2900, et seq.

ii. D.C. Code § 22-1321(d)

• The Department of Consumer and Regulatory Affairs (DCRA) Purview: i. Construction Related Noise (20 DCMR § 2802)

ii. Garbage Related Noise (20 DCMR § 2806)

Noise Regulation D.C. Code § 25-725(a)

• The penalty for violating § 25-725 is a secondary violation punishable on a sliding scale of fines beginning at $250.00 depending on the number of past violations.

• In order to merit a violation, the noise must: a) Be heard inside another premise; and

b) Be created by instruments, amplification devices, or other devices specifically designed to make noise (i.e., drums, speakers, TVs, radios, microphones)

• The noise cannot be created by unamplified human

voices, emergency vehicles, safety signals, alarms, HVAC systems

Noise Regulation DC Code § 25-725(b)

• This section shall not apply to: i. Areas in the building which are not part of the licensed

establishment;

ii. A building owned by the licensee which abuts the licensed establishment;

iii. Any premises other than the licensed establishment which are located within a C-1, C-2, C-3, C-4, C-M, or M zone, as defined in the zoning regulations for the District; or

iv. Sounds, noises, or music occasioned by normal opening of entrance and exit doors for the purpose of ingress and egress

• Under (b)(3), any premise located in a commercial or industrial zone is not protected by 25-725(a) (i.e., Adams Morgan, DuPont Circle, Downtown)

Noise Regulation DC Code § 25-725(c)

• The licensees under this subchapter shall comply with the noise level requirements set forth in Chapter 27 of Title 20 of the District of Columbia Municipal Regulations

• Licensees must comply with this provision regardless of the exceptions in 25-725(b)

• DCRA and MPD conduct sound meter readings for Chapter 27

Maximum Sound Levels 20 DCMR § 2701

• This Regulation sets maximum sound levels for DC:

i. Daytime (in dB(A)’s) a) Industrial Zone – 70

b) Commercial Zone – 65

c) Residential Zone - 60

ii. Nighttime (in dB(A)’s) a) Industrial Zone – 65

b) Commercial Zone – 60

c) Residential Zone – 55

• A violation is punishable by a $300.00 fine or up to 10 days in jail

• 20 DCMR § 2714 allows a complainant to sue in civil

court

Noise Regulation Continued

• It is unlawful for a person to make an unreasonably loud noise between 10:00 p.m. and 7:00 a.m. that is likely to annoy or disturb one or more other persons in their residences

• Please contact MPD for patron noise (i.e., loud patrons exiting the bar or disturbing the neighborhood)

Noise Regulation 2013 Omnibus Bill

• The Omnibus Bill requires ABRA staff to operate a complaint line until at least one hour after the end of ABC license hours

• Upon receiving a complaint, the agency will contact the Licensee to inform them that a complaint has been filed

• ABRA Investigators now have the authority to require Licensees to open or close their windows and doors

ABRA Documents

• Public Documents Maintained by ABRA, include: i. Investigative Histories

ii. ABRA Investigative Reports

iii. ABC Board Orders

iv. ABC Board Hearing Transcripts

v. Settlement Agreements

vi. Applications - both pending and approved

vii. Listings of ABC Licensees

• Public Documents are available through ABRA’s Records Division

• Freedom Of Information Act (FOIA) requests should be directed to ABRA’s FOIA Officer, Bill Hager: William.Hager@dc.gov or (202) 442-4425

Grade DC

On February 5, 2013, ABRA became a part of Grade DC. This initiative assigns a grade to an agency based upon feedback that is received regarding the facilities, services and staff of that agency. These grades are then used to assess that agency’s performance and ultimately improve those areas that are found to be deficient.

Please take a Grade DC card with you and grade your government, today!

Who Do I Call?

• ABC Board Matters (Hearings and Calendar) General Counsel, Martha Jenkins at 202/442-4456

• Settlement Agreements and Protests Assistant Attorney General, Jon Berman at 202/442-4448

• ABRA’s ANC Liaison Community Resource Advisor, Sarah Fashbaugh at 202/397-3971

• Complaints or Enforcement Chief Johnnie Jackson at 202/442-4351

• Press Inquiries and Public Documents Bill Hager at 202/442-4425

Alcoholic Beverage Regulation Administration

Address 2000 14th Street, NW, Suite 400 South The Reeves Building Washington, DC 20009

Website http://abra.dc.gov

Numbers Phone: (202) 442-4423 Fax: (202) 442-9563 TTY: (746) 777-7776