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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) (2008 Supp.) and Section 303 of Title 23 of the District of Columbia Municipal Regulations (DCMR), hereby gives notice of the following final rules that replace existing section 306 of Title 23 DCMR and maintain the current limit on the number of retailer’s licenses Class A, B, CR, CT, CN, CX, DR, DT, DN, and DX issued in a portion of East Dupont Circle, which shall be known as the East Dupont Circle Moratorium Zone, for a three (3) year period. These final rules also permit the approval of no more than four (4) lateral expansion applications.
On February 12, 2009, the Board received a request from Advisory Neighborhood Commission 2B (ANC 2B), voting nine (9) to zero (0) with a quorum present, for a thirty (30) day extension of the existing East Dupont Circle Moratorium Zone to April 23, 2009. The request for the extension was based upon ANC 2B’s desire to hold one more public meeting to receive community input and to finalize a committee report for consideration by the full ANC 2B. On March 4, 2009, the Board held a Fact Finding Hearing on the request for the thirty (30) day extension. ANC 2B appeared at the Fact Finding Hearing in support of the thirty (30) day extension. The Dupont Circle Merchants and Professional Association (DC MAP) also attended the Fact Finding Hearing and supported the thirty (30) day extension. As a result, the Board voted six (6) to zero (0) on March 4, 2009, to extend the existing East Dupont Circle moratorium for thirty (30) days to April 23, 2009.
On March 12, 2009, ANC 2B filed its resolution, adopted on a nine (9) to zero (0) vote with a quorum present, to renew the East Dupont Circle moratorium for a five (5) year period. The ANC 2B resolution requested the approval of no more than two (2) lateral expansions of existing licenses. The resolution also addressed requirements regarding entertainment endorsements, requested a prohibition on additional sidewalk café and rooftop seats for establishments along 17th Street between P and Q Streets, N.W., and encouraged establishments adjacent to Stead Park to construct summer gardens overlooking the renovated park.
On April 15, 2009, the Board held a public hearing on ANC 2B’s request to renew the moratorium pursuant to the requirements of D.C. Official Code § 25-354 (2001) and to approve no more than two (2) requests for lateral expansion of existing licenses. The Board received a significant amount of detailed testimony and comments, both in favor of and in opposition to the renewal of the East Dupont Circle moratorium.
On April 22, 2009, the Board found based upon the appropriateness standards set forth in D.C. Official Code §§ 25-313(b)(2) and 25-313(b)(3) (2001), that the testimony and evidence put forward by ANC 2B, and various individual residents located in or in proximity to the East Dupont Circle Moratorium Zone warranted the continued limit on the number of retailer’s licenses Class A, B, CR, CT, CN, CX, DR, DT, DN, and DX issued in the East Dupont Circle Moratorium Zone, based upon the appropriateness standards set forth in D.C. Official Code §§ 25-313(b)(2) and 25-313(b)(3) (2001) with some modification. The Board voted to modify the existing moratorium to permit the issuance of one (1) additional Class CR or Class DR retailer’s license.
At the April 22, 2009 hearing, the Board adopted ANC 2B’s proposal for the approval of no more than two (2) lateral expansion applications. The Board also noted that while it gave great weight to the ANC and considered heavily the concerns of the residents who live most closely to the commercial corridor, it is the Board’s position that moratoriums are not meant to be in place indefinitely. The existing East Dupont Circle moratorium has been in place for over eighteen (18) years and there has been a great deal of change in the neighborhood it is intended to preserve.
On June 25, 2009, a Request for Reconsideration of the East Dupont Circle moratorium Proposed Rulemaking was filed by area residents led by David J. Mallof, Donald Jones, and Madison Jones (the Residents) asking the Board to reverse itself on three proposed actions in its April 22, 2009, decision. Specifically, the Residents requested that the Board not increase the number of existing licenses from 22 to 23; that the Board prohibit incremental licensing; and that the lateral expansions be limited to interior space only.
The Board, having been asked to reconsider its decision of April 22, 2009, took the opportunity to not only review the Residents’ Request for Reconsideration, but also took the opportunity to revisit the entirety of its April 22, 2009, decision. The Board decided to make two substantive changes to its original April 22, 2009, notice of proposed and emergency rulemaking. First, the Board is in agreement with the Residents’ request that the Board maintain the current limit of existing licenses at twenty-two (22). As such, the Board has decided not to add an additional license in the East Dupont Circle Moratorium Zone. Second, public comment received by the Board reflects that there is a need for more than the two (2) lateral expansion applications requested by ANC 2B. Specifically, there are establishments with significant neighborhood support, who would not be able to file if lateral expansions were limited to only two (2) applications. As such, the Board now finds that it is appropriate to grant four (4) lateral expansions, rather than the two (2) that were originally requested.
This rulemaking was adopted by the Board on July 29, 2009, by a four (4) to two (2) vote. Board Members Mital M. Gandhi and Charles Brodsky dissented from the position taken by the majority of the Board with regard to the rulemaking. Board Members Gandhi and Brodsky were in favor of lifting the moratorium on lateral expansions altogether. Board Members Gandhi and Brodsky believe that the moratorium on lateral expansions has outlived its original purpose and that the restriction contributes to the stifling of economic growth in neighborhoods such as East Dupont Circle.
The emergency rules were re-adopted by the Board on December 2, 2009, and again on May 12, 2010, to keep the existing moratorium in effect while the Council considered identical proposed rules already before the Council.
The final rules were adopted by the Board on July 28, 2010. The text of the final rules is substantively identical to the text of the notice published in the D.C. Register on September 4, 2009, at 56 DCR 7340.
Pursuant to D.C. Official Code § 25-211(b)(2) (2009 Supp.), these proposed rules were transmitted to the Council of the District of Columbia (Council), for a ninety (90) day period of Council review on May 26, 2010. These proposed rules were approved by Council Resolution 18-522, the “East Dupont Circle Moratorium Zone Regulations Approval Resolution of 2010”, adopted by the Council at its June 29, 2010, legislative meeting. These final rules will become effective five (5) days after being published in the D.C. Register.
Title 23 DCMR, Chapter 3, “Limitations on Licenses,” is amended by replacing the existing section 306 to read as follows:
306 EAST DUPONT CIRCLE MORATORIUM ZONE
306.1 A limit shall exist on the number of Retailer’s licenses issued in the area that extends approximately six hundred (600) feet in all directions from the intersection of 17th and Q Streets, N.W., Washington, D.C., as follows: Class A – Two (2); Class B – Two (2); Class CR or Class DR – Sixteen (16); Class CT or Class DT – Two (2); Class CN or DN – Zero (0); and Class CX or Class DX – Zero (0). This area shall be known as the East Dupont Circle Moratorium Zone.
306.2 The East Dupont Circle Moratorium Zone is more specifically described as the area bounded by a line beginning at New Hampshire Avenue and S Street, N.W.; continuing east on S Street, N.W., to 17th Street, N.W.; continuing south on 17th Street, N.W., to Riggs Place, N.W.; continuing east on Riggs Place, N.W., to 16th Street, N.W.; continuing south on 16th Street, N.W., to P Street, N.W.; continuing west on P Street, N.W., to 18th Street, N.W.; continuing north on 18th Street, N.W., to New Hampshire Avenue, N.W.; and continuing northeast on New Hampshire Avenue, N.W. to S Street, N.W.
306.3 All hotels, whether present or future, shall be exempt from the East Dupont Circle Moratorium Zone.
306.4 Nothing in this section shall prohibit the Board from approving the transfer of ownership of a Retailer’s license Class A, B, CR, CT, DR, or DT located within the East Dupont Circle Moratorium Zone, subject to the requirements of the Act and this title.
306.5 Nothing in this section shall prohibit the Board from approving the transfer of a license from a location within the East Dupont Circle Moratorium Zone to a new location within the East Dupont Circle Moratorium Zone.
306.6 A license holder outside the East Dupont Circle Moratorium Zone shall not be permitted to transfer its license to a location within the East Dupont Circle Moratorium Zone unless the transfer will not exceed the number of licenses permitted in the East Dupont Circle Moratorium Zone for that particular class or type, as set forth in Section 306.1.
306.7 Subject to the limitation set forth in Section 306.8, nothing in this section shall prohibit the filing of a license application or a valid protest of any transfer or change of license class.
306.9 No more than four (4) lateral expansion applications shall be approved by the Board in the East Dupont Circle Moratorium Zone. If four (4) lateral expansion applications are approved by the Board, current holders of a Retailer’s license Class A, B, C, or D within the East 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 either: (a) the prior owner or occupant of the adjacent space, property, or lot held within the prior five (5) years a Retailer’s license Class A, B, C, or D; or (b) the adjacent space, property, or lot had, for the prior five (5) years, a certificate of occupancy or building permit held in the name of the current holder of the Retailer’s license Class A, B, C, or D seeking the lateral expansion. Nothing in this section shall prohibit holders of a Retailer’s license Class C or D from applying for outdoor seating in public space.
306.10 This section shall expire three (3) years after the date of publication of the notice of final rulemaking.
