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ALCOHOLIC BEVERAGE REGULATION ADMINISTRATION
ALCOHOLIC BEVERAGE CONTROL BOARD
NOTICE OF EMERGENCY AND PROPOSED RULEMAKING
On February 12, 2010, the Board received a written resolution from Advisory Neighborhood Commission (ANC) 2E, voting seven (7) to zero (0), with a quorum present, to support the continuance of the existing Georgetown moratorium for an additional five (5) year period and to allow for two (2) additional licenses. On March 1, 2010, the Board received a joint petition from ANC 2E and the Citizens Association of Georgetown (CAG) requesting a moratorium on additional seating at licensed establishments located within six hundred feet (600′) of Georgetown Court/Prospect Place (3206 N Street, N.W.). The Board scheduled the matters for a hearing on March 24, 2010.
Prior to the March 24, 2010, public hearing, the Board received several written requests for a ninety (90) day extension. The request for the extension was to provide an opportunity for more community input on the two (2) moratorium requests. On March 24, 2010, the Board held a hearing on the request for the ninety (90) day extension. ANC 2E, as well as CAG, Georgetown University (GU) and numerous community members appeared at the hearing in support of the ninety (90) day extension. As a result, the Board voted five (5) to zero (0) on March 24, 2010, to extend the existing Georgetown Moratorium for ninety (90) days.
On May 10, 2010, the Board received a second resolution from ANC 2E, voting seven (7) to (0), with a quorum present, to amend the February 12, 2010, resolution from two (2) new licenses to seven (7) new restaurant licenses. The request for allowing up to seven (7) new restaurant licenses was also supported in an amended petition filed by CAG. Lastly, the Board received a motion filed by Robert R. Elliott on March 19, 2010, to strike the seat moratorium petition.
In the interest of economy and pursuant to the requirements of D.C. Official Code § 25-354 (2001), the Board consolidated the two (2) moratoria for purposes of one (1) hearing and held a public hearing on June 9, 2010. The Board held the hearing to consider ANC 2E’s and CAG’s request to continue the existing moratorium and approve no more than seven (7) new restaurant licenses and to limit seating in the Georgetown Court/Prospect Place (3206 N Street, N.W.) neighborhood. The Board also heard testimony on Robert Elliott’s motion to strike the request of ANC 2E and CAG to limit the amount of additional seating in this area.
The Board received a significant amount of detailed testimony, oral and written, both in favor of and in opposition to the two (2) moratoria. The Board found the testimony and comments to warrant increasing the number of retailer licenses class CR and DR licenses in the Georgetown moratorium from sixty-one (61) licenses to sixty-eight (68) licenses.
While the Restaurant Association Metropolitan Washington and other individuals requested that the current moratorium on restaurant licenses be removed altogether, the Board found, based on the testimony at the June 9, 2010, public hearing that keeping a specific cap on the number of restaurant licenses remains necessary. For example, the testimony of ANC 2E stressed the importance of keeping a limit on the number of licenses in the Georgetown Moratorium Zone to preserve a proper balance of peace, order, and quiet in the neighborhood.
The testimony of ANC 2E and CAG indicated that the issuance of seven (7) additional class CR or DR retailer’s licenses would not adversely affect the public peace, order, and quiet of the moratorium zone. Specifically, the testimony of ANC 2E and CAG indicated that adding seven (7) restaurant licenses would create a healthy balance of establishments in the commercial mix of businesses in Georgetown without reaching an undesirable level of licensees. The Board found this argument to have merit and is in agreement with the request of ANC 2E and CAG to allow for seven (7) additional restaurant licenses in the Georgetown Moratorium Zone. The written petition of ANC 2E and CAG also requests that as existing restaurant licenses in the Georgetown Moratorium Zone are cancelled that they be permitted to be replaced. The Board is in agreement with this request and is implementing an overall cap of restaurant licenses in this area at sixty-eight (68).
The Board made its decision to extend the existing moratorium based upon the appropriateness standards set forth in D.C. Official Code § 25-313(b)(2) and (3) (2009 Supp). Specifically, the testimony and evidence put forward by ANC 2E, CAG, existing licensees, and various individual residents located in or in proximity to the Georgetown Moratorium Zone established that concerns with peace, order, and quiet, and vehicular and pedestrian safety warranted the continuation of the existing moratorium as well as a limit on the number of retailer’s licenses Class CR and DR.
In reaching its decision, the Board gave great weight to the written resolutions of ANC 2E as required by section 13(d)(3) of the Advisory Neighborhood Councils Act of 1975, effective October 10, 1975 (D.C. Law 1-21, D.C. Official Code § 1-309.10(d)(3)) (2001), and D.C. Official Code § 25-609 (2001).
Additionally, at the June 9, 2010, hearing, the Board continued the moratorium for only a three (3) year period rather than a five (5) year period. On June 22, 2010, ANC 2E, Georgetown BID, CAG, and GU filed joint written comments requesting the Board reconsider its decision to limit the moratorium to three (3) years. The submitted written comments indicated that the rationale for a five (5) year moratorium is based on a deep knowledge of the area, a long experience with earlier moratorium periods, and a keen sense of the collegial well-being of the community. The joint comments also indicated that every other moratorium period in place in Georgetown has been for a five (5) year period during all states of the economy. The Board finds these arguments persuasive and as such, has decided to continue the moratorium for five (5) years rather than a three (3) year period.
Also at the June 9, 2010, hearing, the Board received testimony requesting that the moratorium zone be opened to allow for one (1) retailer’s Class DX license. Subsequent to the hearing on October 5, 2010, both ANC 2E and CAG submitted written comments to the Board indicating that they did not object to the issuance of a retailer’s Class DX license. Indeed, CAG indicated to the Board that the addition of one new Class DX retailer’s license would not undermine the integrity and purpose of the existing moratorium. The Board finds that allowing one (1) Class DX retailer’s license is appropriate in this instance and thus on October 6, 2010, it voted six (6) to zero (0) to amend the proposed rules to allow one (1) retailer’s Class DX license in the Georgetown Moratorium Zone.
With respect to the second petition regarding the prohibition of additional seating at licensed establishments within the six hundred foot (600′) area of Georgetown Court/Prospect Place (3206 N Street, N.W.), the Board did not find that allowing additional seating will adversely impact the peace, order, and quiet of the neighborhood or will significantly impact traffic congestion or impact parking needs. Additionally, the Board took into consideration over one hundred (100) letters it received from neighborhood residents who oppose the limitation on seats. The Board also received testimony indicating that this limitation serves no purpose in affecting the behavior and management of bad licensees, but rather the seat moratorium would inhibit the economic development of the neighborhood. Therefore, the Board does not approve the request by ANC 2E and CAG to prohibit additional seating in the Georgetown Court/Prospect Place (3206 N Street, N.W.) area. The Board’s decision renders Robert Elliott’s motion to strike as moot.
The statements set forth above reflect the written reasons for the Board’s decision as required by 23 DCMR § 303.1.
The emergency action is necessary to: (1) prevent the filing of applications for new retailer’s licenses class CT, DT, CN, DN, CX and DX and (2) to ensure that the limitation placed on the issuance of new retailer’s licenses class CR or DR is not exceeded, which the Board has determined pursuant to D.C. Official Code §§ 25-313 and 25-314 would:
(1) Have an adverse effect on peace, order, and quiet;
(2) Have an adverse effect on residential parking needs and vehicular and pedestrian safety; and
(3) Contribute to an over-concentration of licensed establishments adversely affecting the Georgetown Moratorium Zone.
These amended emergency rules were originally adopted by the Board on July 7, 2010, by a vote of six (6) to zero (0). The emergency rules will expire one hundred twenty (120) days after the date of effectiveness or by November 7, 2010.
These emergency rules were re-adopted by the Board on October 6, 2010, to keep the existing moratorium in effect while the Council considers these amended proposed rules already before the Council. These emergency rules will expire one hundred twenty (120) days from the date of effectiveness or upon publication of a Notice of Final Rulemaking in the D.C. Register, whichever occurs first.
Pursuant to D.C. Official Code § 25-211(b) (2009 Supp.), these proposed rules will also be transmitted to the Council of the District of Columbia, and the final rules may not become effective until the expiration of the ninety (90) day period of Council review or upon approval by Council resolution, whichever occurs first.
Chapter 3, “Limitations on Licenses,” of Title 23, “Alcoholic Beverages,” of the DMCR is amended by replacing the existing section 305 to read as follows:
305 GEORGETOWN MORATORIUM ZONE
305.1 No retailer’s licenses class CT, DT, CN, DN, or CX, shall be issued for a period of five (5) years after the effective date of this section in the Georgetown Moratorium Zone that extends approximately one thousand eight hundred (1,800) feet in all directions from the intersection of Wisconsin Avenue and N Street, N.W., Washington, D.C. The number of class CR or DR retailer’s licenses permitted in this area shall not exceed sixty-eight (68). The number of class DX retailer’s licenses in this area shall not exceed one (1).
305.2 The Georgetown Moratorium Zone is more specifically described as the area bounded by a line beginning at the intersection of 33rd and Q Streets, N.W.; continuing east on Q Street, N.W. to Wisconsin Avenue, N.W.; continuing southeast on Wisconsin Avenue, N.W., to Q Street, N.W.; continuing east on Q Street, N.W., to 29th Street, N.W.; continuing south on 29th Street, N.W., to P Street, N.W.; continuing east on P Street, N.W., to 28th Street, N.W.; continuing south on 28th Street , N.W., to O Street, N.W.; continuing east on O Street, N.W., to 27th Street, N.W.; continuing south on 27th Street, N.W., to the northwest boundary of Rock Creek Park; continuing southwest along the northwest boundary of Rock Creek Park to the north bulkhead of the Potomac River; continuing west along the north bulkhead of the Potomac River to the Key Bridge; continuing north on the Key Bridge to M Street, N.W.; continuing West on M Street, N.W., to 36th Street, N.W.; continuing north on 36th Street, N.W., to O Street, N.W.; continuing east on O Street, N.W., to 35th Street, N.W.; continuing north on 35th Street, N.W., to P Street, N.W.; continuing east on P Street, N.W., to 34th Street, N.W.; continuing north on 34th Street, N.W., to Volta Place, N.W.; continuing east on Volta Place, N.W., to 33rd Street, N.W.; and continuing north on 33rd Street, N.W., to Q Street, N.W. (the beginning point).
305.3 The following establishments shall be exempt from the Georgetown Moratorium Zone:
(a) All hotels, whether present or future; and
(b) Establishments located in or to be located in Georgetown Park, Georgetown Park II, Prospect Place Mall, Georgetown Court, and Washington Harbor.
305.4 Nothing in this section shall prohibit the Board from approving the transfer of ownership of a Class C or D retailer’s license within the Georgetown Moratorium Zone that was in effect or for which an application was pending prior to the effective date of this section, subject to the requirements of Title 25 of the D.C. Official Code and this title.
305.5 Nothing in this section shall prohibit the Board from approving the transfer of a license from a location within the Georgetown Moratorium Zone to a new location within the Georgetown Moratorium Zone.
305.6 A license holder outside the Georgetown Moratorium Zone shall not be permitted to transfer its license to a location within the Georgetown Moratorium Zone.
305.7 Nothing in this section shall prohibit a valid protest of any transfer or change of license class.
305.8 The moratorium shall have a prospective effect and shall not apply to any license granted prior to the effective date of this section or to any application for licensure pending on the effective date of this section.
305.9 This section shall expire five (5) years after the date of publication of the notice of final rulemaking.
Copies of the emergency and proposed rulemaking can be obtained by contacting Martha Jenkins, General Counsel, Alcoholic Beverage Regulation Administration, 1250 U Street NW, Washington, D.C. 20009. All persons desiring to comment on the proposed rulemaking must submit their written comments, no later than thirty (30) days after the date of publication of this notice in the D.C. Register to the above address.
