From the Office of Advisory Neighborhood Commissions to inform the community on proposed updates to the DC ABC laws/regulations. Important information. CM Graham is chairing the hearing. There should be discussion on these proposed changes for they could have a significant impact, especially in the complaint process.
"Let there be Light"
Albrette "Gigi" Ransom
Commissioner, ANC 5C12
_______________________________________________
Albrette "Gigi" Ransom
Commissioner, ANC 5C12
_______________________________________________
----- Forwarded Message -----
From: oancdc <oanc@att.net>
To: OANC@yahoogroups.com
Sent: Thursday, May 3, 2012 7:57 PM
Subject: [OANC] May 8th Hearing on Proposed Changes in DC Alcohol Laws
From: oancdc <oanc@att.net>
To: OANC@yahoogroups.com
Sent: Thursday, May 3, 2012 7:57 PM
Subject: [OANC] May 8th Hearing on Proposed Changes in DC Alcohol Laws
Councilmember Graham has asked me to share this information about a May 8th hearing on proposed changes in DC alcohol laws. In addition, if you have access to a listserv in your neighborhood, you're requested to post the information there, too.
GS
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May 8th Hearing on Proposed Changes in DC Alcohol Laws
Dear Friends and Commissioners,
I want you all to know that I will convene a public hearing to get public comment on the ABC Working Group Recommendations for possible changes in the District's alcohol laws. The hearing will be Tuesday, May 8 at 11 a.m., in Room 412 of the John A. Wilson Building, 1350 Pennsylvania Avenue, NW.
The ABC Working Group, a group comprised of ANC and Citizens' Association and nightlife industry representatives has met 10 times since December and has recommended changes to the District's alcoholic beverage laws.
The recommendations of the Working Group address noise issues, overconcentration (of alcohol licensees) and the license protest process concerning other matters. A complete list of the recommendations is included as an attachment.
If you have questions or wish to testify, please contact Mr. Malcolm Cameron at the Committee on Human Services. You can reach him by e-mail at mcameron@dccouncil.us or call him at (202) 724-8191. Please bring 15 copies of your written testimony.
Bests,
Councilmember Jim Graham
Council of the District of Columbia
Committee on Human Services
Councilmember Jim Graham
ABC Working Group
Final Recommendations
May 3, 2012
Final Recommendations of ABC Working Group
May 3, 2012
Recommendations Adopted by ABC Working Group from the Noise Task Force with recognition that some of the noise issues fall outside of the purview of ABRA—with respect to these, the Working group will include DCRA, developers, realtors and others, to the initial public hearing regarding recommendations 1-5.
The following items were agreed to by the Noise Task Force, considered and voted upon January 9, 2012. The Working Group makes these recommendations with the recognition that other agencies within the DC Government have jurisdiction over matters related to noise.
1. Require that windows and doors of establishment from which noise can be heard be closed before determining whether there is violation of D.C. Official Code § 25-725(a).
2. Clarify that noise from heating, ventilation, and air conditioning devices are not subject to D.C. Official Code § 25-725(a).
3. Require that separations between dwellings and commercial spaces located in the same building have 60 Sound Transmission Class (STC) [rating of how well a building partition attenuates airborne sound].
4. Require that windows in mixed-use buildings have 40 to 45 STC.
5. Require that developers and realtors disclose to potential buyers and tenants their rights under the District's noise laws.
Further Noise Recommendations
The following conclusions were agreed to on February 6, 2012.
6. Will not seek removal of current noise exemption for ABC licensees in C-1 zones because there are so few C-1 businesses and impact not significant.
7. Will not seek removal of current noise exemption for ABC licensees in C-2 zones because impact too extensive.
8. ABRA shall maintain a complaint line that can receive complaints by phone, email and fax. The complaint line shall be manned by an ABRA staff member during all
legal hours of liquor sale and at least one hour after the legal hour of liquor sales.
Complaints shall be entered into a database and should include the time and date when the complaint is made, the name and address of the licensed establishment, the name and address of the person making the complaint (if available), the nature of the complaint (such as noise from patrons, noise from music, operating after hours, in violation of voluntary agreement etc.) and, after investigation, whether or not the complaint was substantiated.
Immediately after a complaint is received by ABRA, an ABRA staff member shall attempt to contact the establishment by phone and inform the on-duty ABC manager that a complaint has been received, the nature of the complaint, and any other information that would help the licensee to resolve the complaint. ABRA will also notify the license holder of the complaint by email, phone or registered mail within 72 hours of the complaint.
ABRA shall notify the licensee of the result of any investigation.
Licensee Orientation
9. ABRA shall create a new licensee orientation class which shall be available to licensees at no charge. The class curriculum shall include a review of relevant laws and regulations, techniques for sound management and noise abatement, and instruction on how to work with ANC's, neighborhood groups, business groups and residents in proactively addressing issues.
Technical Amendments
The following items are of a technical nature and are recommended by the Working Group:
10. Define miniature as "an alcoholic beverage in a sealed container holding 50 milliliters or less."
A miniature is a tiny bottle of spirits or wine. Currently, the law provides that a licensee under an off-premises class A retailer's license (beer, wine and spirits) may sell and deliver no fewer than 6 miniatures of spirits or wine per purchase. However, miniatures are not currently defined under the law. This amendment would define such miniatures with the industry standard of 50 milliliters or less. (D.C. Official Code § 25-751)
11. Allow off-premises retailer (Class A or B) to sell to on-premises retailer during the Saturday, Sunday, and holiday hours that wholesalers are closed.
Currently, an on-premises retailer (bar, tavern, restaurant) can only buy alcohol from a wholesaler. This amendment would allow an on-premises retailer to buy alcohol from an off-premises retailer if it runs out of a particular item and the wholesaler is closed on weekends or holidays. (D.C. Official Code § 25-112)
12. Provide that on-premises retailer (Class C or D) can incur secondary tier penalty for knowingly allowing patron to exit establishment with open alcoholic beverage container.
Currently, there is no specific penalty for an establishment if it allows a customer to leave with an open container. This would impose such a penalty and require it to be "knowingly" on the part of the establishment.
13. Impose a flat fee (amount to be determined) for stipulated licenses.
A stipulated license is one that can be applied for by a manufacturer, wholesaler or retailer if they want to operate during the 45-day public notice (placard) period. There is currently no fee for such a license. (DCMR 23-200)
14. Impose a graduated fee for a safekeeping license (25% of annual license fee for every 6 months license remains in safekeeping – if license remains in safekeeping for 2 years, fee shall increase to 50% of annual license fee for every 6 months license remains in safekeeping after 2-year period).
A safekeeping license is one where an establishment closes or stops operating for any reason – the license is placed in "safekeeping" with the ABC Board. The Board shall hold the license until the licensee resumes business at the licensed establishment or the license is transferred to a new owner. There is currently no fee for such a license. (D.C. Official Code § 25-791)
15. Make it a primary tier violation for a licensee to sell or serve alcohol on a suspended or expired license.
There is no currently no such penalty. (D.C. Official Code § 25-830)
16. Make it a primary tier violation for licensee to not be in compliance with statutory food requirements.
Certain establishments have various food requirements in terms of the percentage that they are required to sell. There is currently no penalty for not being in compliance with such requirements. (D.C. Official Code § 25-830)
17. Increase wine alcohol content from 14% to 15%.
Currently, the alcoholic content for the sale of wine is restricted under the law to 14% for Class B retailers (beer and wine) – Class A retailers can sell wine with an alcoholic content higher than 14%. Since there is demand by the public for wines with a content of 14.2%, this amendment would allow for the sale of such wines by Class B retailers. (D.C. Official Code § 25-101)
18. Create a wine pub permit authorizing a licensee to manufacture wine on location for on-premises consumption, for sale to licensed wholesalers for the purpose of resale to other licensees and for sale to patrons in sealed bottles for off-premises consumption.
Currently, the law only provides for a brew pub endorsement to manufacture beer on location for on-premises consumption, for sale to licensed wholesalers for the purpose of resale to other licensees and for sale to patrons in sealed bottles for off-premises consumption. This amendment would allow for a similar endorsement for wine. (D.C. Official Code § 25-110)
19. Correct erroneous referral to "new owner license renewal" as opportunity for protest.
This would correct a drafting error in the D.C. Code. – one cannot have renewal of a "new owner." (D.C. Official Code § 25-601)
20. Protest Qualification and Process
The ABC Working Group agreed on language below defining the circumstances under which a group of five individuals may qualify to protest a pending license.
A. Sec. 25- 601(2) "a group of no fewer than five (5) residents or property owners of the District residing or owning property within a 400 foot radius of the establishment to be licensed;…"
The ABC Working Group agreed on language below ensuring that notice be given both to the membership of a neighborhood association and to the applicant for a license—if the citizen's association is voting on a resolution regarding a pending license. The language below also addresses the circumstance under which a group of five citizens and the ANC both protest a pending license. Language below at (a) and (b) was adopted by the Working Group. Subsection (c) was adopted in concept, but language not drafted.
B. Sec. 25-601(3)
(a) "A 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 to the voting body and the applicant at least seven (7) days before the date of the meeting.
(b) The applicant has been offered an opportunity to address the voting body concerning the application.
C. a protest of a license application, taken by an ANC, will subsume other protests by one (or more) groups of five, of the same license, once the ANC has signed an agreement. The group of five protest(s) is (are) extinguished at such time, and only at such time, as a voluntary agreement is signed. The ANC will be the signatory on the agreement.
21. Definition of "Overconcentration" Language below was adopted by the Working Group.
a. Overconcentration—Where there exists a number of licensed establishments that adversely affect a specific locality, section, or portion of the District of Columbia, including consideration of the appropriateness standards under Sec. 25-313(b).
22. Voluntary agreements – There was substantial discussion and language developed addressing Voluntary agreements. Proposed language regarding Voluntary Agreements is circulated as a separate document.
23. Address the portion December 18, 2008 OAG opinion that concludes Voluntary Agreements are Contractual Agreements.
The Working Group agrees to have ABRA work with the Office of the Attorney General to seek a revised opinion to address concerns about the December 18, 2008 OAG opinion in which the AG opines that Voluntary Agreements are contractual agreements.
24. A proposal to allow Sunday sales for Class A licensees was not included in the Mayor's FY 13 Proposed Budget Support Act of 2012; however the Working Group recommends a legislative change to allow Class A Sunday sales as a proposal which will generate needed revenue.
25. Mayor's FY 13 Proposed Budget Support Act of 2012 proposal regarding Inaugural celebration extended hours, Subtitle E
26. Change the existing requirement and relieve manufacturers, wholesalers, and retailers of the requirement to maintain hard copies as part of the record keeping requirement.
27. Allow the issuance of new class B licenses provided that (1) there is room under the quota and (2) the licensee's alcohol sales don't exceed 25% of annual gross receipts.
28. Recommend to Office of Tax and Revenue that wholesalers be allowed to use milliliters for reporting purposes since net volume for many alcoholic beverages, such as wines, are reported in metric units.
29. C/X, C/N and C/H licensees should be permitted to apply for licenses to brew their own beer.
30. Daylight savings time—Establishments should be permitted to serve for the hour normally lost when the clocks move back for daylight savings time, without additional application or fee. (There was language in original proposal stating that this would be conditioned upon an increase in fees that would adequately offset any fees currently collected.) This provision should not be effective prior to FY 2014.
31. Amend the definition of "nude performance" by changing, in the definition, the word "buttocks" to the word "anus" and reference the criminal code, so definitions of "nude performance" in the ABC context and "indecent exposure" in the criminal code are consistent.
32. Permit the use of 64 oz. growlers in brew pubs and full service supermarkets to sell beer for off premises consumption.
33. Add Subsection (5) below in order to create a requirement for a Citizens' Association to provide notice to ABRA if it wishes to be added to the list of parties that will receive statutorily mandated notice of an application for a license, renewal of a license or substantial change in a license. The existing language is set out below along with the recommended language at (5).
Subchapter II. Notice of Application Proceedings
§ 25-421. Notice by Board
(a) Upon the receipt of an application for the issuance or renewal, for a substantial change in operation as determined by the Board under 25-404, or for the transfer of a license to a new location, of a retailer's license, the Board shall give notice of the application to the following parties:
(1) The Council;
(2) Repealed.
(3) Repealed.
(4) Any ANC within 600 feet of where the establishment is or will be located.
(5) A citizen's association meeting the requirements of D.C. Code § 25-601(3), provided the citizen's association has, at least 30 days prior to receipt of the application, registered with the Board by providing a copy of its charter, and an email or other electronic address in a form consistent with Board procedure.
Catering Issues, Items 36-37
34. Amend Catering definition and regulations to exempt holders of on-premise licenses from requirement to purchase from retailers.
§ 25-113. On-premises retailer's licenses
(5) Wholesalers and off-premises retailers, class A, may sell alcoholic beverages to caterers licensed under this subsection for catered events of 100 persons or less. Only off-premises retailers, class A, may sell alcoholic beverages to caterers licensed under this subsection for catered events in excess of 100 persons, provided, however, that nothing herein shall prohibit a caterer which also holds a license under subsections (a)-(e) from purchasing alcoholic beverages from wholesalers for use at catered events.
35. 2002.1 A Caterer licensed under § 2000.1, other than one also holding an on-premises retailer's license under D.C. Official Code § 25-113 (a)-(e), shall not purchase alcoholic beverages from a Wholesaler other than for scheduled events to be attended by one hundred (100) persons or less. Upon purchasing alcoholic beverages for an event of one hundred (100) persons or less from a Wholesaler, a Caterer shall immediately provide the following information to the Wholesaler on a form prescribe by ABRA:
(a) A description of the alcoholic beverages being purchased; and
(b) A description, including the location, of the scheduled event for which the alcoholic beverages are being purchased.
2002.3 Any caterer who also holds an on-premises retailer's license under D.C. Official Code § 25-113 (a)-(e) shall be exempt from the provisions of this section.
2003. STORAGE OF ALCOHOLIC BEVERAGES.
2003.1 The licensee under a Caterer's license may store alcoholic beverages in the District of Columbia upon the approval of the Board, provided, however, that specific approval shall not be required for any caterer which also holds an on-premises retailer's license under D.C. Official Code § 25-113. The licensee under a Caterer's license shall not store alcoholic beverages intended for use in the District of Columbia outside of the District of Columbia.
ABRA Issues discussed and agreed to April 23, 2012
36. Temporary License Deliveries District law is currently silent regarding whether the holder of a temporary license may have alcoholic beverages delivered prior to the date of the actual event. Working Group agreed to clarify that alcoholic beverages can be delivered by a wholesaler to the holder of a temporary license up to 48 hours in advance of an event occurring on a Saturday or Sunday provided that the alcoholic beverages are not consumed until the date of the event and are stored in a secure location.
37. Security Plan Requirements Agreed that the security plan requirements contained in D.C. Official Code §§ 25-402 and 25-403 should be amended to require written security plans to include language regarding the establishment's plan for preserving a crime scene. Additionally, ABRA and the ABC Board believe that these provisions should be amended to clarify that in the event cameras are used or required by the Board: (1) the cameras utilized by an establishment must be operational, (2) that footage of a crime of violence or a dangerous crime involving a gun must be maintained by an establishment for a minimum of thirty (30) days and (3) an establishment must make security footage available immediately upon the request of ABRA or MPD within 48 hours.
38. Civil Penalty Schedule Agreed to recommend amendment D.C. Official Code § 25-830(c)(3) to provide the Board with the option to either (1) revoke a liquor license or (2) fine a licensee not less than $30,000 and serve a mandatory ten (30) day suspension.
39. ID requirement Section 25-783—Agreed to recommend change to current ID requirements by adding a new subsection (e) to read as follows: (e) A defense to a charge of subsection (a) of this section shall be that the person was twenty-one years of age or older.
40. Assault on government officials Section 25-826 Agreed to recommend change to current law regarding assault on government officials by adding the phrase "after investigation" after the word "may".
Voluntary Agreements
VOLUNTARY AGREEMENTS
The ABC Working Group agreed to the following provisions with respect to Voluntary Agreements:
41. At 25-446 language regarding show cause hearing requirements should be changed as follows:
A. Show cause hearing. Language requiring a show cause hearing to address a voluntary agreement violation at 25-446 (e) should be stricken.
B. Working Group adopts recommendation to change language as follows at 25-446 (e) Voluntary agreements; approval process, violations:
(e) Upon a determination that the licensee has violated the voluntary agreement, the Board shall penalize the licensee according to the provisions set forth for violations of a license in Chapter 8.
42. A new subsection 25-446(f) is added to clarify issues that may be included in a voluntary agreement. They are as follows:
25-446(f) A voluntary agreement submitted by the parties shall be subject to and adhere to the following conditions:
1. Entertainment
a. A voluntary agreement may not prohibit an applicant or existing licensee from providing specific types of music or entertainment for indoor and outdoor facilities. Restrictions on entertainment are limited to the following:
i. Exclusion of entertainment
ii. Hours of entertainment; and
iii. Specification of physical attributes to mitigate noise emanating from the outdoor facility. Physical attributes may include architectural features, sound barriers, and placement of speakers.
2. Noise
a. A voluntary agreement may specify methods to mitigate the level of noise heard outside the establishment, including:
i. Sound attenuation elements;
ii. Keeping the doors and windows closed (except for ingress and egress) during hours of entertainment; and
iii. Indoor entertainment may be restricted to a specific area.
3. Litter
a. A voluntary agreement may describe reasonable efforts that the applicant or existing licensee shall take to control litter and other debris in the immediate area surrounding the establishment, including the following:
i. Indicating the frequency that the applicant or existing licensee shall monitor the area,
ii. Indicating the days and time that the applicant or existing licensee shall remove the trash; and
iii. Efforts by the establishment to limit rat and vermin populations.
1. The voluntary agreement shall not require that the rat and vermin control contract be made available to the ANC or other community groups or members. The rat and vermin control contract may be requested by the ANC or community groups from ABRA or the ABC Board.
4. Parking
a. A voluntary agreement may describe parking arrangements, if any, including the use of valet service contingent on proper permitting.
5. Security
a. A voluntary agreement may require that the applicant or existing licensee maintain an incident log.
b. A voluntary agreement may require that the incident log be made available to ABRA and the Board, upon request.
c. A voluntary agreement shall not require that the incident log be made available to the ANC or other community groups or members. The incident log may be requested by the ANC or community groups from ABRA or the ABC Board.
6. Notice to Cure
a. A voluntary agreement may include a notice to cure provision.
7. Hours of Operation and Sales and Service of Alcohol
(1) A voluntary agreement may restrict hours of operation and sales and service for a new or existing licensee's outdoor facilities with respect to the following conditions:
(i) A licensee's history of previous violations;
(ii) The proximity of the establishment to a residential district; and
(iii) The hours of operation and sales and service of alcohol for existing licensees in the area.
8. Occupancy. A voluntary agreement may restrict:
(1) The utilization of floors, occupancy, and the number of seats may be restricted in the voluntary agreement for existing licensees with respect to the following considerations:
i. A licensee's history of previous violations;
ii. The proximity of the establishment to a residential district; and
iii. The hours of operation and sales and service of alcohol for existing licensees in the area.
9. Restatement of Law.
A new subsection 25-446 (g) is added to read as follows:
A voluntary agreement may include statements that stipulate that the establishment must comply with an existing District statute or regulation, or must comply with privileges granted by ABRA or another District Agency. However, a licensee may not be fined or suspended for a violation of the ABC laws and regulations and also charged with a violation of their voluntary agreement arising from a single violation.
43. A new section 25-446 (g) should be added.
A Voluntary Agreement may not include the following:
1. Limitations on Restraint of Trade
(1) A voluntary agreement shall not include statements that restrain the ability of the applicant or existing licensee to operate its business, including:
a. Requirements that the ANC or other community members approve future ownership changes;
b. Requirements that the ANC or other community members be notified of intent to transfer ownership;
c. Prohibitions against the applicant or existing licensee applying for a change in license class;
d. A requirement that the applicant or existing licensee change the license class before selling the license;
e. Requirements that prohibit the licensee from applying for changes to licensed operation procedures, including applications for summer gardens, sidewalk cafes, rooftop decks, entertainment endorsements, and change of hours;
f. Mandates regarding specific brands of alcohol or pricing for alcohol;
g. Restrictions on the age of patrons; and
h. Requirements that the applicant or existing licensee use a specific company for services.
2. Creation of Additional Procedures
(1) A voluntary agreement shall not include statements that create additional administrative procedures in addition to those required by ABRA or another District Agency.
3. Attendance at Meetings
(1) A voluntary agreement shall not require that the applicant or existing licensee attend ANC meeting or other community meetings.
4. Conflicts of Interest
(1) A voluntary agreement shall not include statements or requirements that the applicant or existing licensee:
i. Provide money, special considerations, or other financial benefits to the community;
ii. Requirements that the applicant or existing licensee join any group; and
iii. Requirements that the applicant or existing licensee hire local individuals.
5. Enforceability
(1) All provisions of a voluntary agreement shall be measureable and enforceable by ABRA or the Board.
(2) A voluntary agreement not approved by the Board shall not be enforced by ABRA or the Board.
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