Young and Hungry

Hank’s Oyster Spar

This past weekend, the brunch crowd sipped Bloody Marys and chatted over lobster rolls and French toast on Hank’s Oyster Bar’s packed patio. Or rather, half-packed.

Twenty of the 40 seats on the restaurant’s newly expanded outdoor seating area are gone, leaving an empty, fenced-in concrete slab. A large sign posted there reads: “THIS AREA OF HANK’S OYSTER BAR IS CLOSED DUE TO AN INVOLUNTARY AGREEMENT.”

Nearly three weeks ago, Alcoholic Beverage Control investigators forced Hank’s to shut a portion of its patio following a dispute with a handful of nearby residents over the restaurant’s termination of its voluntary agreement with the neighborhood.

Since then, Hank’s has become the hottest battleground in a larger debate about how much power small groups should have over the operations of restaurants and bars. This isn’t just about a handful of tables in Dupont Circle; the clash is the latest twist in the District’s long saga of NIMBYs vs. new businesses. Should the city defer to residents trying to hold on to peace, order, and quiet? Or should it push for a lively, urban environment, particularly in dense neighborhoods like Dupont?

“I think it’s a tipping point,” says Restaurant Association Metropolitan Washington president Lynne Breaux of the unusually vocal response that followed Hank’s owner Jamie Leeds’ very public calls for support and reform. “People are just getting fed up with antiquated liquor laws.”

After Leeds made the dispute public, RAMW took the rare step of backing an individual restaurant’s cause, which it believes has larger implications. The organization called on the D.C. Council to take a closer look at laws that allow neighbors to negotiate hours and rules for restaurants and bars in order for those businesses to obtain liquor licenses. As few as five people—or as few as three in neighborhoods with caps on licenses—can lodge protests, which are most often put to rest by the establishment signing a “voluntary agreement,” or, as many restaurant folks call it, an “involuntary agreement.” RAMW says only elected Advisory Neighborhood Commissions, not small ad hoc groups, should get that kind of power.

As it happens, the council is about to try to rewrite all those rules anyway. A new bill introduced by Ward 1 Councilmember Jim Graham on Tuesday proposes that only residents or property owners within a 400-foot radius of a bar or restaurant be able to protest its license. Right now, anyone living anywhere can protest a liquor license application. The bill would make agreements with ANCs trump any others, so bars and restaurants wouldn’t have to navigate multiple deals with multiple groups.

How the high-profile Hank’s dispute, and the zeal with which the city’s food and bar businesses have come to Leeds’ defense, will affect that bill isn’t clear yet. Graham started discussing recommendations for reform in December, and says the Dupont Circle situation didn’t play into deliberations. But the timing has the council taking up the issue just as the less savory effects of the current law are on full display.

* * *

The Hank’s Oyster Bar dispute dates back to 2005, when Leeds prepared to open the Dupont restaurant. It was first of what will soon be three area locations, with one in Alexandria and another in Capitol Hill on the way. The same group of neighbors tied up with Leeds today protested Hank’s liquor license then. But hearings on the matter were repeatedly pushed back, and at the time, there were no measures in place to ensure a timely decision. So Leeds couldn’t get a license, or serve booze, unless she entered into a voluntary agreement. In the low-margin restaurant world, most business plans depend on alcohol, which can sell at a far higher markup than food.

“I wasn’t going to open without a liquor license. You’re dead in the water if you do that,” Leeds says. “I was kind of forced with my back up against the wall.”

That agreement limited Hank’s hours and operations and prevented it from expanding. So, in 2010, when the space next door became available and a loosening of the area’s liquor license moratorium allowed Leeds to take over the adjoining spot, she went to the ABC Board to terminate the voluntary agreement. At the time, 22 residents protested, but ultimately, liquor authorities agreed to the termination with the unanimous support of the Dupont Circle ANC.

Leeds spent more than $400,000 to build a new lounge and dining area, plus the expanded patio. She opened the renovated space last August. But the same six neighbors who pushed for the initial voluntary agreement believed the liquor board acted illegally in terminating it. They took the case to the D.C. Court of Appeals, which reversed the decision. Now, the board is taking another look to decide whether the voluntary agreement stays.

The conflict exploded a day before the Capital Pride Parade, one of the busiest days of the year for Hank’s. At 11:30 p.m. on Fri., June 8, an ABC investigator showed up to say that Hank’s would have to close the expanded section of its patio, pending a decision from the board, which could take up to 90 days from the hearing date.

That was the last straw for Leeds. While many restaurateurs deal with such issues behind the scenes, Leeds went public. She posted an open letter on the restaurant’s website, calling on supporters to contact the D.C. Council. Blogs and the press picked it up, as did the Urban Neighborhood Alliance, the Gay and Lesbian Activists Alliance, fellow restaurants, and neighbors rallied behind Hank’s. Alcoholic Beverage Regulation Administration director Fred Moosally says the agency has received more than a thousand emails on the matter.

“In terms of the virtually spontaneous outpouring of support in one of these cases, I think it’s unprecedented,” says Andrew Kline, the licensing representative for Hank’s and the lobbyist for RAMW. “The population has changed a bit, and there are a lot of people who’ve moved into town to take advantage of an urban lifestyle, and I think they’re being heard from.”

While Leeds awaits a decision, the restricted hours and limited patio seating mean she’s missing out on $3,000 to $4,000 a day in revenue, she says.

The protesters (one of whom dropped out this weekend, saying the fight had gotten too divisive) argue that the area already has too much outdoor seating serving alcohol. They’re concerned that if left unrestricted, the noise and crowds would negatively affect property values and disrupt the general peace and quiet of the neighborhood. They also don’t want too many alcohol-serving establishments, preferring a balance of stores, homes and apartments, and restaurants.

The neighbors are also concerned, though, with hypotheticals. Michael Fasano, one protester who’s lived in Dupont for more than 40 years, argues that if Hank’s gets to double its patio, then “it seems to me we’re obliged to allow” anyone else in the neighborhood to do the same. And while protesters say they think Hank’s has been a good neighbor overall, they worry that Leeds’ liquor license could one day transfer to someone else who allows more noise and disruption.

The reaction to the patio closing surprised some of the neighbors, who say they’ve been unfairly vilified for standing up for their principles and exercising their legal rights. As for ANCs taking the lead in negotiating with restaurants, they say the commissions don’t always have the time, resources, or interest to properly address matters that affect specific residents.

“Gandhi had an expression: Even if you’re a minority of one, if you’re right, you’re right,” Fasano says. “Let’s be honest here, ANCs can be extremely political...I don’t think forcing every issue through the ANC is the answer.”

Which, in essence, is why the restaurant business can’t stand the current licensing regime: It grants disproportionate power over how bars and restaurants operate to small groups whose strong feelings about them may not be representative of the wider neighborhood. Bar Pilar and Café Saint-Ex co-owner John Snellgrove says dealing with the various local organizations and ad hoc groups who can speak out on liquor licenses can be a “grueling and soul-sucking experience.”

No matter what winds up happening with Graham’s bill—which will come up for debate July 12, just before the council closes up for a summer legislative break—some people are guaranteed to be unhappy with it. Which means everyone may need a drink before this is over.

Eatery tips? Food pursuits? Send suggestions to hungry@washingtoncitypaper.com.

Photo by Darrow Montgomery

  • Dave

    Great article. Hope it actually is the tipping point for change. Excited to see it finally resolved in Hank's favor, which I'm confident it will.

  • bobster

    Nice article. Glad to see you have finally caught up with Borderstan's 2 years of coverage on the issue.

  • bobster

    Acutally, this is a great article. I only wish the mainstream media, such as City Paper, had been giving this story more coverage over the long run. The specifics of the case and the history are mind boggling. More,please!

  • Bob

    Frightening times we live in: CP is now "mainstream media"????

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  • Jes’ sayin’

    Doing a story about Hank's without mentioning protest ringleader David Mallof is like doing a grade school science report on the solar system and not mentioning Jupiter, or, in this case, Uranus.

  • Should have mentioned

    None of the protesters actually live on the block where Hank's is located.

  • SimmerDahnNah

    MIchael Fasano quoting Ghandi is like Gordon Ramsay quoting Fred Rogers.

  • Lance

    Their block might be across the intersection from Hank's but Graham's bill would put them easily within the 400 foot radius he's proposing. I'm glad he's recognizing that this isn't (or at least shouldn't be) a popularity contest where matters get decided by mob-rule. The neighbors most affected by a licensed establishment should have the right to seek compromises with that establishment that will allow them all to live together as 'good neighbors'. That's what a democracy is all about. It's not about 'we want this and since we're the majority we'll get it', but instead a true democracy is all about ensuring the rights of minorities are protected. And those neighbors within that 400 foot radius are definitely the minority in the neighborhood (and city, for that matter) who'll bear the brunt of the externalities that naturally come with outside seating and a larger licensed establishment.

    When I see a place like Hank's refusing to even acknowledge that it has a special obligation to its nearest neighbors, who'll be giving up large chunks of their peace and quiet for the licensed establishment to operate, I have to wonder what's running through their minds. Since when did 'where're all in this together' turn into 'but I can make another $3,000 to $4,000 a day with more patio space'.

    Fortunately, most licensed establishments in this neighborhood take their responsibilities to the closest neighbors seriously, and there isn't a problem. We never hear about 99.9% of the voluntary agreements out there. Only the few which are under the 'representation' of Andrew Kline. (Incidentally, there's an error in the story ... Kline is currently disbarred ... i.e., he can't legally 'represent' anyone in the District of Columbia. He apparently misappropriate clients funds. Hopefully, Hank's money was among that taken.)

  • Lance

    typo in my last comment. Meant to write: "Hopefully, Hank's money was NOT among that taken."

  • SimmerDahnNah

    Lance your understanding of the facts is interesting.

    First off, these same NIMBYs most certainly have attempted to obstruct other patios and licensed businesses up and down 17th Street.

    Secondly, the other businesses been represented by a number of people other than the one you mentioned, some of them courteous softies, and even given that, you might do well to ask them what they think of this gang against Hank's, and their sympathies for Hank's wanting to stop being obligated to try and work with them on a Voluntary Agreement. Uh, we just had a 4-1/2 + hour hearing that showed the protestor's idea of being invited to talk meant they were demanding a power point presentation or no deal.

    Thirdly, you can't wish for kumbaya Voluntary Agreement land with people who would sooner walk through hell with a gasoline can and lit match than agree to a VA that allowed Hank's to expand.

    Fourth, it doesn't matter what anyone's bar standing is for liquor license cases. It is administrative law, that is, you don't even have to be a lawyer to represent people before the ABC Board.

    But your penchant for accuracy is well known by this point across DC blogs.

  • James

    This is great. Would love to see more community pressure and focus on Dave Maloff and his crew of bullies intent on turning 17th Street into a row of frame stores.

  • Jes’ sayin’

    Hey Lance,

    Graham's bill might have them within the 400 feet he's proposing, but it would also boot them out the door once the ANC negotiated a VA with Hank's or any such establishment.

    No more multiple VA's and no more moving the goal posts multiple times in the middle of the game. And no more Mallof and his gang of five bullying the neighborhood. And no more of your insipid justifications for that bullying. More than 1700 people have signed that petition in support of Jamie, and this is an election year. Council has had enough of Mallof, his cronies, and his enablers.

    Game over.

  • Mary Tucker

    Great article and discussion. Attached is the link to the petition for anyone who cares about supporting local business growth and having their voices heard (and we are being heard!). We have just shy of 1800 signatures and growing!

    http://www.change.org/petitions/alcoholic-beverage-regulation-administration-rule-in-favor-of-hank-s-oyster-bar-dupont-circle

  • anon

    I agree with @Lance that there is a different responsibility to "closest neighbors" as opposed to community at large . Hours and nature of business directly impacts immediate neighbors -- for those of you who do not live nor have ever lived next to a bar/restaurant, issues like acceptable times to empty trash/recycling really impact quality of life. VAs tend to keep a check that the establishment abides by this reasonable request. If you've never been awakened at 2 or 3 in the morning by the cacophony of closing staff emptying bottles into a dumpster , you may not get why people want a binding agreement for the establishment to hold off until an acceptable time the following day. Hanks may not be this bad neighbor, but plenty of other places genuinely couldn't give a *@$!

  • Urbaniste

    Anon has a point. You might have a different perspective if you enjoy urban living near museums, theaters, restaurants, and sidewalks enlivened with people, but value sleeping between midnight and 7am. And this is not limited to empty nesters. A number of condos and apartment buildings in my neighborhood have a mix of young, middle-aged, and senior residents. Some from each age group, but especially those with young children, have complained about the noise from nightclubs and their patrons, from as far away as four blocks. Those across the street or alley do get the brunt of it come closing times, which is as late at 3am on weekends. There have been nightclubs here with capacities of 3,000 -- imagine even half of those on the street at one time. Now it seems relatively quiet most, but not all evenings with only 500 - 800 exiting in less than a half hour. Unfortunately, many who may be mannerly, well behaved, agreeable young adults during the day and early evening hours are hardly that after having a few too many drinks inside a club. Noise under your window, vomiting and urinating at your condo or apartment entrance are all too common. The clubs pick up debris outside their doors but not across the street or down the block and none clean up vomit or urine. Just as bad are the guys continuing to party with their CDs blasting out of their cars -- windows down of course; this could awaken a hybernating bear (and unfortunately, the bass sounds get louder as they bounce of the buildings so it is worse on the 8th floor than the 3rd). Also, as Anon mentioned, dumping refuse into a dumpster in the alley ia incredibly loud.

    If via the licensing process restaurants could not apply for licenses that allow them to morph into nightclubs of various sorts -- something that their legal advisors always seem to recommend, at least in our neighborhood, as it gives them the greatest opportunity to sell their business should they fail or want to retire -- then there would likely be far fewer demands for Voluntary Agreements -- at least that would be the case here.

    Here, some of the responsibility for having the neighbors object is on the shoulders of the restaurant owners and their attorneys. If they don't plan on being open until 3am and have no intention to hire a DJ or have live music and dancing, they could seek a license I believe that meets their needs without it possibly morphing into a nighclub. I would predict fewer VAs and those that are requested are likely to be less onorous.

    The agreements are a cost to the restaurant's investors, but they can be a personal cost to the residents if they find a need to hire an attorney to help them along the way. And if most of the residents who could manage negotiating such an agreement also hold demanding full-time jobs, they too would appreciate having to work on fewer VAs. The restaurant is working on one, the residents who don't move every two years find they work on several of them.

    The idea of desginating the ANC as the signatory to future VAs makes lots of sense; even small ANCs can ask for volunteers from the community to help negotiate the VAs, so it need not always be an additional burden on a commissioner's time. ANCs also receive some funding, which if the rules allow, could permit them to hire an attorney to help out.

    But, again, I have a plea that the regulations be amended to separate restaurants from nightclubs so that the license sought truly represents what the establishment intends to be rather than what a future owner might want to turn it into. It is that fear that has driven residents to objecting to many restaurants, the process that allows them to negotiate a VA.

  • Lance

    @Urbaniste, good thought in your email. Note though while the ANC can (should) be a helpful negotiating party to the VAs, since ANCs cannot (by law) bring a lawsuit when an agreement has been breached, it's necessary to have at least one resident on the agreement who legally CAN bring a lawsuit (or threaten one) to bring the restaurant/bar into compliance with the agreement. Otherwise, if it's only the ANC signing off, then there'll be no way of enforcing the VA, and in which case, they become usuable for their purpose.

  • Logic Please

    It's completely illogical to suggest ANCs alone shouldn't be allowed to do VAs, because you want someone on the VA who can "bring a lawsuit when an agreement has been breached." You're mixing a regulatory process with civil legal process. If a VA is being violated, the process for that is the city agency, ABRA and the ABC Board. Separate adjudicatory animals entirely. If someone went to the courts, holding a VA, saying "I want to sue because this VA has been violated, and I didn't get the results I wanted from ABRA and ABC," no judge will entertain them for one moment UNLESS they are filing suit against the city on a much larger and broader principle. Which they can do now anyway, regardless of who is or is not on any VA. Meanwhile there is nothing, not a single thing, stopping any individual from filing a lawsuit against a business for having injured or damaged them.

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