6156510 Alcoholic Beverage Regulation Administration, Notice of Second Emergency Rulemaking - Chapter 3 of Title 23 - Amending Section 307 of 23 DCMR to extend the West Dupont Circle Moratorium.

ALCOHOLIC BEVERAGE REGULATION ADMINISTRATION

ALCOHOLIC BEVERAGE CONTROL BOARD

 

NOTICE OF SECOND EMERGENCY RULEMAKING

 

The Alcoholic Beverage Control Board (Board), pursuant to the authority set forth in Section 101(a) of the Title 25, D.C. Code Enactment and Related Amendments Act of 2001, effective May 3, 2001 (D.C. Law 13-298; D.C. Official Code § 25-351(a) (2012 Repl.)), hereby gives notice of the adoption of emergency rules that amend Section 307 (West Dupont Circle Moratorium Zone) of Title 23 (Alcoholic Beverages) of the District of Columbia Municipal Regulations (DCMR). 

 

In summary, these rules renew the existing West Dupont Circle Moratorium Zone (WDCMZ) with certain modifications for a period of three (3) years.   Specifically, the rules amend Section 307 to maintain the current limit on the number of retailer’s Class CN and DN licenses, and remove the previous limitation on all other retailer class licenses in the WDCMZ.

  

The Board originally adopted Emergency and Proposed Rules extending the WDCMZ on August 12, 2015.  Those rules were published in the D.C. Register on September 4, 2015, at 62 DCR 12241 [EXPIRED].  On December 9, 2015, the Board adopted Emergency Rules which extended the proposed amendments previously adopted by the Board.  The emergency rules, which were published in the D.C. Register on March 11, 2016, at 63 DCR 3782, expired on April 9, 2016.  Thereafter, the Board re-adopted Emergency and Proposed Rules on March 30, 2016, to avoid having the emergency rules expire while the proposed rulemaking underwent the mandatory ninety (90)-day Council review period.  These Emergency and Proposed Rules were published in the D.C. Register on June 17, 2016, at 63 DCR 8533. 

 

In accordance with D.C. Official Code § 25-112(b)(2), the Emergency and Proposed Rules were transmitted to the Council for the District of Columbia (Council) for a ninety (90)-day review.  The West Dupont Circle Moratorium Zone Approval Resolution of 2016 (PR21-801) was introduced to the Council on June 7, 2016, and referred to the Committee on Business, Consumer and Regulatory Affairs on June 21, 2016.  The rules are deemed approved at the end of the ninety (90) day review period or September 20, 2016.  These emergency rules expired on July 28, 2016. 

 

Emergency rulemakings are used only for the immediate preservation or promotion of the public peace, health, safety, welfare, or morals, pursuant D.C. Official Code § 2-505(c).  As previously mentioned the existing emergency rules expired on July 28, 2016.  The emergency action is necessary for the preservation of the health, safety and welfare of the District residents in order to ensure that the prohibitions provided in the modified moratorium are maintained while the proposed rules are being reviewed by the Council. 

 

The present Emergency Rules are identical to the Emergency and Proposed Rules published in the D.C. Register on June 7, 2016, and pending before the Council.  During the thirty (30)-day comment period, ABRA did not receive any comments in response to the Emergency and Proposed Rules, and therefore, does not anticipate making any changes to the rules when they are ultimately published as final later in the year.

 

The Board adopted these emergency rules on July 27, 2016, by a vote of three (3) to zero (0).  The emergency rules went into effect at that time and will remain in effect for one hundred twenty (120) days; expiring on November 24, 2016, unless superseded by a final rulemaking.

 

Chapter 3, LIMITATIONS ON LICENSES, of Title 23 DCMR, ALCOHOLIC BEVERAGES, is amended as follows:

 

Section 307, WEST DUPONT CIRCLE MORATORIUM ZONE, 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 CN or DN - Zero (0). 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 CN/DN 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.

 

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 licensee in the West Dupont Circle Moratorium Zone shall be permitted to request a change of license class to CN, or DN.

 

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.