2454020 Alcoholic Beverage Regulation Administration - West Dupont Circle Moratorium Zone Final Rulemaking

ALCOHOLIC BEVERAGE REGULATION ADMINISTRATION

ALCOHOLIC BEVERAGE CONTROL BOARD

 

NOTICE OF FINAL RULEMAKING

 

                                               

The Alcoholic Beverage Control Board (Board), pursuant to the authority set forth in D.C. Official Code § 25-351(a) (2001 & 2011 Supp.) and section 303 of title 23 of the District of Columbia Municipal Regulations (DCMR), hereby gives notice of the adoption of final rules that replace existing section 307 of chapter 3 (Limitations on Licenses) of title 23 (Alcoholic Beverages) of the DCMR and maintain the current limit on the number of retailer’s licenses for Class A, B, CT, CN, CX, DT, DN, and DX issued in a portion of West Dupont Circle, which shall be known as the West Dupont Circle Moratorium Zone, for a three (3) year period.  The rules remove the previous cap that existed on the number of retailer’s licenses Class CR and DR in the West Dupont Circle Moratorium Zone.  The final rules were adopted by the Board on April 11, 2012 by a 7-0 vote .  The text of the final rules is substantively identical to the text of the notice published in the D.C. Register on October 28, 2011 at 58 DCR 9287.

 

The rules also correct an inadvertent omission of language when the West Dupont Circle Moratorium Zone was last extended in 2006.  Specifically, an amendment adopted in 2000, exempting establishments located in, or to be located in, the New Hampshire Avenue side of One Dupont Circle, N.W. (One Dupont Circle Exemption) from the moratorium zone was inadvertently omitted from the language describing the moratorium zone when it was renewed in 2006.  These rules address this issue by exempting the New Hampshire side of One Dupont Circle, N.W., from the West Dupont Circle Moratorium Zone.

 

On February 10, 2011, the Board received a resolution from Advisory Neighborhood Commission 2B (ANC 2B), adopted February 9, 2011, voting six (6) to zero (0) with a quorum present, for a sixty (60) day extension of the existing West Dupont Circle Moratorium Zone to May 23, 2011.  On March 16, 2011, the Board held a public hearing on the request for the sixty (60) day extension, and not on the merits of the petition to reauthorize the existing moratorium.  The hearing also included the request to take corrective action to restore the One Dupont Circle Exemption.  On March 23, 2011, the Board voted six (6) to (0) to extend the existing West Dupont Circle Moratorium for sixty (60) days to May 23, 2011, and to exclude One Dupont Circle, N.W., from the Moratorium.    

 

On May 4, 2011, the Board held a public hearing on the request of ANC 2B to extend the existing moratorium, with some modification, for three (3) years.  ANC 2B appeared at the public hearing and testified in support of the renewal of the Moratorium for three (3) years and the elimination of the cap on Retailer’s Class CR and DR licenses.  ANC 2B testified that the removal of the cap on Retailer’s Class CR and DR licenses would be fruitful to both businesses and residents alike.  This conclusion was reached after extensive and thorough research by ANC 2B regarding the P Street, N.W. corridor and its inability to sustain non-restaurant retailers.  ANC 2B determined that the corridor was not well suited for other types of retail space and that by lifting the cap on Retailer’s Class CR and DR licenses, new restaurants would offer the ideal solution to occupy available retail space and would be compatible with the mixed layout of the neighborhood.

 

ANC 2B testified that it was necessary to maintain the current cap on Retailer’s Class CT/DT and CN/DN licenses in order to ensure the peace, order, and quiet of the neighborhood as well as the public safety of the neighborhood for residents and other pedestrians.  ANC 2B noted that Retailer’s Class CT and CN licenses are the primary source of problems for the neighborhood and that maintaining the existing cap on these license classes would help to ensure that these problems are not exacerbated.  Likewise, the ANC’s research demonstrated a concern that there would be an oversaturation of off-premise alcohol establishments if the cap on Retailer’s Class A and B licenses were removed.

 

Lastly, ANC 2B suggested a shorter moratorium renewal period of three (3) years instead of five (5) years to allow the Board to assess the effectiveness of the proposed changes, and thus allow the Board the greatest degree of flexibility to adapt and adjust the moratorium in reviewing the effect of these changes. 

 

The Dupont Circle Merchants and Professional Association (DC MAP) filed written testimony to oppose the renewal and requested that the Board allow the Moratorium to expire.  DC MAP argued that seventeen (17) years was long enough to place restrictions and prohibit competition in the West Dupont Circle neighborhood.  DC MAP is supportive of ANC 2B’s proposal to remove the cap on Retailer’s Class CR and DR licenses; however, they do not support other aspects of the ANC resolution.  They stated that concerns regarding peace, order.quiet, and public safety can be adequately addressed in individual voluntary agreements.  DC MAP indicated that ANC 2B and the Board are well equipped and experienced to handle ABC licensed establishments on a case by case basis should there be any concerns regarding their operations.  

 

In reaching its decision, the Board gave great weight to the written recommendations of ANC 2B 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) (2006 Repl. & 2011 Supp.)), and D.C. Official Code § 25-609 (2001).  Specifically, the Board agrees with ANC 2B regarding the removal of the cap on Retailer’s Class CR and DR licenses, and is lifting the cap on restaurant licenses while continuing to maintain the existing cap on all other retail license classes.  Additionally, based upon the testimony presented at the hearing, including the recommendation of ANC 2B, the Board believes that a three (3) year extension of the West Dupont Circle Moratorium is warranted and is in the best interest of the West Dupont Circle community. 

 

The statements set forth above reflects the written reasons for the Board’s decision as required by 23 DCMR § 303.1. 

 

Pursuant to D.C. Official Code § 25-211(b)(2) (2011 Supp.), the proposed rules were transmitted to the Council of the District of Columbia (Council) for a ninety (90) day period of  Council review on December 20, 2011.  These proposed rules were approved by Council Resolution 19-393, the West Dupont Circle Liquor License Moratorium Zone Regulations Approval Resolution of 2012, adopted by the Council at its March 6, 2012, legislative meeting.  These final rules will become effective five (5) days after being published in the D.C. Register.

 

Chapter 3, LIMITATIONS ON LICENSES, of title 23, ALCOHOLIC BEVERAGES, is amended follows:

 

Section 307 is amended to read as follows:

 

307                  WEST DUPONT CIRCLE MORATORIUM ZONE

307.1               A limit shall exist on the number of retailer's licenses issued in the area that extends approximately six hundred feet (600 ft.) in all directions from the intersection of 21st and P Streets, N.W., Washington, D.C., as follows: Class A - Two (2); Class B - Three (3); Class CT or Class DT - Six (6); Class CN or DN - Zero (0); and Class CX or Class DX - Three (3). This area shall be known as the West Dupont Circle Moratorium Zone.

 

307.2               The West Dupont Circle Moratorium Zone is more specifically described as the area bounded by a line beginning at 22nd Street and Florida Avenue, N.W.; continuing north on Florida Avenue, N.W., to R Street, N.W.; continuing east on R Street, N.W., to 21st Street, N.W.; continuing south on 21st Street, N.W., to Hillyer Place, N.W.; continuing east on Hillyer Place, N.W., to 20th Street, N.W.; continuing south on 20th Street, N.W., to Q Street, N.W.; continuing east on Q Street, N.W., to Connecticut Avenue, N.W.; continuing southeast on Connecticut Avenue, N.W., to Dupont Circle; continuing southwest around Dupont Circle to New Hampshire Avenue, N.W.; continuing southwest on New Hampshire Avenue, N.W., to N Street, N.W.; continuing west on N Street, N.W., to 22nd Street, N.W.; and continuing north on 22nd Street, N.W., to Florida Avenue, N.W. (the starting point).

 

307.3               All hotels, whether present or future, shall be exempt from the West Dupont Circle Moratorium Zone.  The 1500 block of Connecticut Avenue, N.W., shall be exempt from the West Dupont Circle Moratorium Zone.  Establishments located in, or to be located in, the New Hampshire side of One Dupont Circle, N.W., shall be exempt from the West Dupont Circle Moratorium Zone. 

 

307.4               Nothing in this section shall prohibit the Board from approving the transfer of ownership of a retailer's license Class A, B, CR, CT, CX, DR, DT, or DX located within the West Dupont Circle Moratorium Zone, subject to the requirements of the Act and this title.

 

307.5               Nothing in this section shall prohibit the Board from approving the transfer of a license from a location within the West Dupont Circle Moratorium Zone to a new location within the West Dupont Circle Moratorium Zone.

 

307.6               A license holder outside the West Dupont Circle Moratorium Zone shall not be permitted to transfer its license to a location within the West Dupont Circle Moratorium Zone unless the transfer will not exceed the number of licenses permitted in the West Dupont Circle Moratorium Zone for that particular class or sub-class, as set forth in subsection 307.1.

 

307.7               Subject to the limitation set forth in subsection 307.8, nothing in this section shall prohibit the filing of a license application or a valid protest of any transfer or change of license class.

 

307.8               No Class CR or Class DR licensee in the West Dupont Circle Moratorium Zone shall be permitted to request a change of license class to CT, DT, CN, or DN, unless the class change will not exceed the number of licenses permitted in the West Dupont Circle Moratorium Zone for that particular class or sub-class, as set forth in subsection 307.1.

 

307.9               A current holder of a retailer's license Class A, B, C, or D within the West Dupont Moratorium Zone shall not be permitted to apply to the Board for expansion of service or sale of alcoholic beverages into any adjoining or adjacent space, property, or lot, unless:

 

(a)        the prior owner or occupant has held within the last five (5) years a retailer's license Class A, B, C, or D; or

 

(b)        the applicant is a Class CR or DR licensee and the prior owner or occupant has held during the last three (3) years, and continues to hold at the time of application, a valid restaurant license from the Department of Consumer and Regulatory Affairs.

 

307.10             The number of substantial change applications approved by the Board for expansion of service or sale of alcoholic beverages into an adjoining or adjacent space, property, or lot, as allowed under subsection 307.9, shall not exceed three (3) during the three (3) year period of the West Dupont Circle Moratorium Zone.

 

307.11             Nothing in this section shall prohibit holders of a retailer's license Class C or D from applying for outdoor seating in public space.

 

307.12             This section shall expire three (3) years after the date of publication of the notice of final rulemaking.