In the Matter of:

Empire DC, LLC t/a Empire Lounge

THE DISTRICT OF COLUMBIA ALCOHOLIC BEVERAGE CONTROL BOARD

) ) ) ) Case No.: ) License No.: ) OrderNo.:

20-PRO-00015 ABRA-110702 2021-448

Application to Renew a Retailer's Class CT License

) ) ) ) ) )

at premises 1909 9th Street, N.W. Washington, D.C. 20001

BEFORE: Donovan Anderson, Chairperson James Short, Member Bobby Cato, Member Jeni Hansen, Member Edward S. Grandis, Member

ALSO PRESENT: Empire DC, LLC, t/a Empire Lounge, Applicant

Richard Bianco, Counsel, on behalf of the Applicant

Pierson Stoecklein, Designated Representative, on behalf of the Westminster Neighborhood Association, Protestants

Martha Jenkins, General Counsel Alcoholic Beverage Regulation Administration

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

INTRODUCTION

The Alcoholic Beverage Control Board (Board) approves the Application to Renew a Retailer's Class CT License filed by Empire DC, LLC, t/a Empire Lounge (hereinafter "Applicant" or "Empire Lounge") subject to conditions. Specifically, based on the establishment's record of compliance, the high density of licensed establishments, the stated intention of the Applicant, and the potential for disturbances in the neighborhood, Empire Lounge shall hire at least two (2) officers with the Metropolitan Police Department

Reimbursable Detail whenever a disc jockey or live band performs at the establishment as described in the Board's Order. The Board's reasoning is explained further below.

Procedural Background

The Notice of Public Hearing advertising Empire Lounge's Application was posted on January 31, 2021, and informed the public that objections to the Application could be filed on or before March 16, 2021. ABRA Protest File No. 20-PRO-00015, Notice of Public Hearing [ Notice of Public Hearing]. The records of the Alcoholic Beverage Regulation Administration (ABRA) indicate that the Westminster Neighborhood Association has filed a protest against the Application. ABRA Protest File No. 20-PRO-00015, Roll Call Hearing Results.

The parties came before the Board's Agent for a Roll Call Hearing on September 14, 2020, where all of the above-mentioned objectors were granted standing to protest the Application. On March 3, 2021, the parties came before the Board for a Protest Status Hearing. Finally, the Protest Hearing in this matter occurred on June 24, 2021.

Based on the issues raised by the Protestants, the Board may only grant the Application if the request will not have an adverse impact on the peace, order, and quiet; residential parking and vehicular and pedestrian safety; and real property values of the area located within 1,200 feet of the establishment. D.C. Code§ 25-313(b); 23 DCMR §§ 1607.2; 1607.7(b) (West Supp. 2021). The WNA also raised the issue of the Applicant's compliance with the law, and any conditions or settlement agreement provisions attached to the license. WNA Protest Letter, at 1-2 (Mar. 16, 2020). The Board further notes that the WNA did not present its own witnesses or evidence during the hearing but relied upon the record to make its case. Transcript (Tr.), June 24, 2021 at 125.

FINDINGS OF FACT

The Board, having considered the evidence, the testimony of the witnesses, the arguments of the parties, and all documents comprising the Board's official file, makes the following findings:

I. Background

1. Empire Lounge has submitted an Application to Renew a Retailer's Class CT License at 1909 9th Street, N.W., Washington, D.C. Notice of Public Hearing.

2. ABRA Investigator George M. Garcia investigated the Application and prepared the Protest Report submitted to the Board. ABRA Protest File No. 20-PRO-00015, Protest Report (Feb. 2020) [Protest Report].

3. The proposed establishment is in an ARTS-2 zone. Protest Report, at 4. Sixty-nine licensed establishments are located within 1,200 feet of the proposed location. Id. at 5. There are no schools located within 400 feet of the establishment. Id. at 8.

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4. Empire Lounge occupies a three-floor building. Id. at 9. The first floor serves as an entry way with stairs that lead to the second floor. Id. The second floor provides a bar, couches, and stools. Id. The third floor provides a bar and 16 couches. Id.

5. The establishment's hours of operation and hours of sale, service, and consumption are as follows: 10:00 a.m. to 2:00 a.m., Sunday through Thursday, and 10:00 a.m. to 3:00 a.m. on Friday and Saturday. Id. at 10. The establishment's entertainment hours run from 8:00 p.m. to 2:00 a.m. Id.

6. The records of the Metropolitan Police Department (MPD) indicate that MPD received 15 calls for service related to the establishment's address between February 2020 and February 2021. Id. at 12.

7. Empire Lounge's investigative history indicates several violations of the District's alcohol laws between 2019 and the date of this Order. Id. at 12-13. First, in Case No. 19-CMP-00029, l 9-CMP-00030, l 9-CMP-00031, 19-CMP-00032, and 19-CMP-00035, the Applicant violated the terms of its settlement agreement on several occasions for which Empire Lounge paid a $2,100 total fine . Id. at 13. In Case No. 20-CMP-00096, Empire Lounge was found in violation of various Mayoral public safety and health order requirements to curb the spread of the coronavirus disease 2019 (COVID-19), including the failure to enforce· mask requirements, offering entertainment, improper spacing of tables and patrons, and minimum food requirements for which the Applicant served a 15-day suspension. Id. Similar offenses were then committed in Case No. 20-CMP-0098 and Case No. 20-CMP-00105 for which the Respondent received a 15-day suspension and 60-day suspension respectively. Id. at 12.

8. The Protest Report also discussed the availability of parking and public transportation. Id. at 9. The report noted that street parking is available, and the establishment is located near one metro station and various bus stops. Id.

9. The Protest Report further discussed the trash disposal practices of Empire Lounge. Id. at 10. In particular, the establishment has a contract providing trash pickup up two times per week. Id. The report indicates that Empire Lounge's trash area "was orderly and not overflowing." Id.

10. ABRA investigators visited the establishment 30 times between January 9, 2021, and June 12, 2021. Tr., 6/24/21 at 30. No disturbances or violations were observed during these visits. Id. at 30-31; see also Protest Report, at 10-11. Nevertheless, the monitoring period occurred while various Mayoral Orders related to curbing the spread of COVID-19 were in effect that temporarily reduced the capacity of various establishments, among other requirements. Id. at51-52.

11. Investigator Garcia observed that 9th Street, N.W., has approximately 20 or more establishments operating on the street. Tr., 6/24/21 at 29. This creates high pedestrian and vehicular traffic and congestion in the neighborhood. Id. at 29-30.

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II. Des Nigussie

12. Des Nigussie owns Empire Lounge. Id. at 60. Empire Lounge operates as a lounge that sells food on the second and third floor of 1909 9th Street, N.W. Id. at 60-61. The establishment also provides in-house and hired disc jockeys to provide entertainment on the second floor. Id. at 70. The establishment has a total occupancy of 125 people. Id. at 71.

13. Mr. Nigussie described his security operations. Id. at 65. He regularly employees three security staff members. Id. at 66. Usually, the establishment has one security member search people and one staff member checks identifications. Id. at 65. The establishment also has security cameras installed throughout the premises. Id. at 67. Finally, Mr. Nigussie and several other neighborhood business owners have developed a plan to hire approximately eight officers with the MPD Reimbursable Detail program for the neighborhood on Friday and Saturday. Id. at 67.

14. Mr. Nigussie also described Empire Lounge's trash management practices. Id. at 75. Currently, the establishment has trash pickup four times per week. Id. He also changed his trash removal service due to a noise complaint. Id. at 76.

15. Mr. Nigussie also described his efforts to mitigate noise. Id. In particular, he removed a speaker and subwoofer that were facing the establishment's rear door. Id. at 76-77. He also obtained a sound system that indicates when the volume is turned up too high so that the DJ can be directed to turn down the volume. Id. Finally, he removed another speaker and installed soundproofing drywall on a wall in one area of the establishment to curb noise . Id. at 78-79, 83, 85-86.

16. Mr. Nigussie further indicated the has shared his phone number with his neighbors in case there are any issues. Id. at 81. He noted that he made changes to his sound system due to complaints he received by text. Id.

17. Mr. Nigussie indicated that the establishment currently offers hookah but has not been granted a specific exemption by the D.C. Department of Health that permits such activity. Id. at 103-04.

III. Dante Roach

18. Dante Roach is a patron of Empire Lounge. Id. at 110. He regularly visits the establishment multiple times per week. Id. In his experience, the crowd is "[n]ot too rowdy" and he feels safe at the establishment. Id. at 111-12. He noted that the area is crowded on weekends, and on occasion he has seen violence and patron arguments in public on 9th Street, N.W. Id. at 112-14.

CONCLUSIONS OF LAW

19. The Board may approve an Application to Renew a Retailer's Class CT License when the proposed establishment will not have an adverse impact on the neighborhood. D.C. Code §§ 25-

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104, 25-313(b); 23 DCMR §§ 1607.2; 1607.7(b) (West Supp. 2021). Specifically, the question in this matter is whether the Application will have a negative impact on the peace, order, and quiet; residential parking and vehicular and pedestrian safety; and real property values of the area located within 1,200 feet of the establishment. D.C. Code§ 25-313(b); 23 DCMR §§ 1607.2; 1607.7(b) (West Supp. 2021). The WNA also raised the issue of the Applicant's compliance with the law and any conditions and settlement agreement provisions attached to the license. WNA Protest Letter, at 1-2 (Mar. 16, 2020).

I. The Establishment is Appropriate for the Neighborhood Subject to Conditions.

20. Based on the high-density of licensed establishments, reports of disorderly behavior in the street, the Applicant's stated intentions, and Empire Lounge's investigative history, the Board finds it necessary for the Respondent to participate in the MPD Reimbursable Detail program under certain conditions. Under the appropriateness test, "the applicant shall bear the burden of proving to the satisfaction of the Board that the establishment for which the license is sought is appropriate for the locality, section, or portion of the District where it is to be located .. . . " D.C. Code§ 25-31 l(a). The Board shall only rely on "reliable" and "probative evidence" and base its decision on the "substantial evidence" contained in the record. 23 DCMR § 1718.3 (West Supp. 2021). The substantial evidence standard requires the Board to rely on "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Clark v. D.C. Dep't of Employment Servs., 772 A.2d 198,201 (D.C. 2001) citing Children's Defense Fund v. District of Columbia Dep't of Employment Servs., 726 A.2d 1242, 1247 (D.C.1999).

21. In determining appropriateness, the Board must consider whether the applicant's future operations will satisfy the reasonable expectations of residents to be free from disturbances and other nuisances-not just whether the Application complies with the minimum requirements of the law. D.C. Council, Bill 6-504, the "District of Columbia Alcoholic Beverage Control Act Reform Amendment Act of 1986," Committee on Consumer and Regulatory Affairs, 38 (Nov. 12, 1986); see Panutat, LLC v. D.C. Alcoholic Beverage Control Bd., 75 A.3d 269,277 n. 12 (D.C. 2013) ("However, in mandating consideration of the effect on peace, order, and quiet,§ 25-313(b )(2) does not limit the Board's consideration to the types of noises described in § 25-725. "). As part of its analysis, the Board should evaluate each "unique" location "according to the particular circumstances involved" and attempt to determine the "prospective" effect of the establishment on the neighborhood. Le Jimmy, Inc. v. D. C. Alcoholic Beverage Control Bd., 433 A.2d 1090, 1093 (D.C. 1981). Furthermore, the analysis may also include the Applicant's efforts to mitigate or alleviate operational concerns, the "character of the neighborhood," the character of the establishment, and the license holder ' s future plans. Donnelly v. District of Columbia Alcoholic Beverage Control Board, 452 A.2d 364, 369 (D.C. 1982) (saying that the Board could rely on testimony related to the licensee's "past and future efforts" to control negative impacts of the operation); Upper Georgia Ave. Planning Comm. v. Alcoholic Beverage Control Bd., 500 A.2d 987, 992 (D.C. 1985) (saying the Board may consider an applicant's efforts to "alleviate" operational concerns); Citizens Ass'n of Georgetown, Inc. v. D.C. Alcoholic Beverage Control Bd., 410 A.2d 197, 200 (D.C. 1979); Gerber v. D.C. Alcoholic Beverage Control Bd., 499 A.2d 1193, 1196 (D.C. 1985); Sophia's Inc. v. Alcoholic Beverage Control Bd., 268 A.2d 799, 800-801 (D.C. 1970).

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a. Approval of the application without conditions may have a negative impact on peace, order, and quiet.

22. "In determining the appropriateness of an establishment, the Board shall consider ... [t]he effect of the establishment on peace, order, and quiet, including the noise and litter provisions set forth in§§ 25-725 and 25-726." D.C. Code§ 25-313(b)(2); see also D.C. Code§§ 25-101(35A), 25-314(a)(4). Among other considerations, the Board is instructed to consider "noise, rowdiness, loitering, litter, and criminal activity." 23 DCMR § 400.1 (a) (West Supp. 2021).

23. In this case, the Board finds the presence of reimbursable detail officers warranted for several reasons. First, the area has a high density of licensed establishments that attracts large amounts of people to the area. Supra, at ,r,r 3, 11. Second, the Applicant's witness reported that violence and patron disputes have occurred on occasion in the neighborhood in the past. Supra, at ,r 18. Third, as part of his presentation, the owner cited his participation in a group effort to hire reimbursable detail officers. Supra, at ,r 13. Therefore, in light of the large crowds, reasonable potential for disturbances, and the stated intention of the ownership, the Applicant merits a requirement on its license to participate in the MPD Reimbursable Detail program to ensure that order is maintained in the neighborhood.

b. Approval of the application will not have a negative impact on residential parking needs and vehicular and pedestrian safety.

24. "In determining the appropriateness of an establishment, the Board shall consider ... [t]he effect of the establishment upon residential parking needs and vehicular and pedestrian safety .... " D.C. Code§ 25-313(b)(3); see also D.C. Code§§ 25-101(35A), 25-314(a)(4). Among other considerations, the Board is instructed to consider the availability of both private and public parking, any parking arrangements made by the establishment, whether "[t]he flow of traffic ... will be of such pattern and volume as to ... increase the [reasonable] likelihood of vehicular [or pedestrian] accidents .... " 23 DCMR § 400.l(b), (c) (West Supp. 2021). Specifically, in this case, the establishment's location is adequately served by public transportation and there is no evidence that the establishment is having a negative impact on residential parking or vehicular and pedestrian safety. Supra, at ,r 8. Therefore, the Board finds in favor of the Applicant on this ground.

c. Approval of the application will not have a negative impact on real property values.

25. In determining whether an establishment is appropriate, the Board must examine whether the establishment is having a negative effect on real property values. D.C. Code § 25-313(b)(l). The Board has noted in the past that the presence of blight may have a negative impact on property values. In re Historic Restaurants, Inc., t/a Washington Firehouse Restaurant, Washington Smokehouse, Case No.13-PR0-0031, Board Order No. 2014-107, ,r 48 (D.C.A.B.C.B. Apr. 2, 2014) citing In re Rail Station Lounge, LLC. t/a Rail Station Lounge, Case No. 10-PRO-00153, Board Order No. 2011-216, ,r 62 (D.C.A.B.C.B. Jun. 15, 2011). In

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this case, there is no indication in the record that the property is blighted; therefore, the Board finds in favor of Empire Lounge on this issue.

II. The Establishment's Record of Compliance Merits the Imposition of Conditions.

26. The Applicant's record merits the imposition of conditions. Under§ 25-315, " [t]he Board shall consider the licensee's record of compliance with this title and the regulations promulgated under this title and any conditions placed on the license during the period of licensure, including the terms ofa settlement agreement." D.C. Code§ 25-315(b)(l). In this case, Empire Lounge has engaged in repeated violations related to its settlement agreement and Mayoral Orders related to curbing the spread of COVID-19. Supra, at 17. These violations raise serious questions about the ownership's ability to properly superintend the business, the ownership's knowledge of the requirements of his license, and ability to act appropriately when confronted with crime, violence, unruly crowds, and other issues that may arise in the course of operating a tavern. Consequently, while the Board does not believe revocation is warranted at this time, the Board finds additional operational requirements necessary.

III. The Board Imposes Conditions on the License to Ensure Order.

27. In light of the Board' s findings regarding appropriateness and Empire Lounge's history of compliance, the Board finds it necessary to impose conditions on the Applicant's license. See In re Dos Ventures, LLC, t/a Riverfront at the Ball Park, Case No. 092040, Board Order No. 2014-512. 149 (D.C.A.B.C.B. Nov. 13, 2013) (saying " [i]n practice, the Board has imposed conditions when it is shown that there are valid concerns regarding appropriateness that may be fixed through the imposition of specific operational limits and requirements on the license"). Under§ 25-104(e), the Board is granted the authority to impose conditions on a license when" .. . the inclusion of conditions will be in the best interest of the [neighborhood] .... " D.C. Code§ 25-104( e ). Additionally, in considering the imposition of conditions, the Board has previously stated that "promises and pledges made by an applicant may be converted into conditions of licensure and satisfy the requirements of§ 25-104( e ), because such pledges pertain to the nature of the operations of the establishment considered by the Board when it granted the license." In re Bardo, LLC, t/a Bardo River Brewery, ABRA License No. 103291, Board Order No. 2016-709, 19 (D.C.A.B.C.B. Dec. 14, 2016) citing In re HRH Services, LLC, t/a The Alibi, Case No. 15-PRO-00096, Board Order No. 2016-280, 194 (D.CAB.C.B. May 18, 2016).

28. In the Board's experience, the provision of entertainment creates the highest level of activity and crowds at licensed establishments. Moreover, in this case, the Applicant stated on the record that it intended to participate in the reimbursable detail program, which the Board relies upon in makings its findings regarding peace, order, and quiet. Supra, at 1 13. Therefore, in order to ensure that high levels of activity do not create or contribute to disorder in the neighborhood and to ensure that serious incidents during such high usage periods are handled appropriately, the Board requires the establishment to participate in the MPD Reimbursable Detail program when providing entertainment. The Board notes that the Protestants did not provide sufficient evidence of other disturbances to merit the imposition of additional conditions, broader reimbursable detail conditions, or revocation. Finally, the Board limits the condition to disc jockeys and live bands because those forms of entertainment tend to generate the most

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intensive usage of the premises unlike other forms of entertainment (e.g., comedy shows or poetry readings).

IV. The Application Satisfies All Remaining Requirements Imposed by Title 25.

29. Finally, the Board is only required to produce findings of fact and conclusions of law related to those matters raised by the Protestants in their initial protest. See Craig v. District of Columbia Alcoholic Beverage Control Bd., 721 A.2d 584, 590 (D.C . 1998) ("The Board's regulations require findings only on contested issues of fact."); 23 DCMR § 1718.2 (West Supp. 2021). Accordingly, based on the Board's review of the Application and the record, the Applicant has satisfied all remaining requirements imposed by Title 25 of the D.C. Official Code and Title 23 of the D.C. Municipal Regulations.

ORDER

Therefore, the Board, on this 18th day of August 2021, hereby APPROVES the Application to Renew a Retailer's Class CT License at premises 1909 9th Street, N. W., filed by Empire DC, LLC, t/a Empire Lounge subject to the CONDITION that

1. Empire Lounge shall hire at least two (2) officers with the Metropolitan Police Department Reimbursable Detail whenever a disc jockey, live band performs at the establishment. The detail shall be hired for at least four hours and run until at least one hour after the end of the Applicant's operations. The Applicant may fulfill this requirement individually or as part of a larger group, such as a Business Improvement District initiative or group of neighborhood businesses.

IT IS FURTHER ORDERED that the Board's findings of fact and conclusions of law contained in this Order shall be deemed severable. If any part of this determination is deemed invalid, the Board intends that its ruling remain in effect so long as sufficient facts and authority support the decision.

The ABRA shall deliver a copy of this order to the Parties.

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District of Columbia Alcoholic Beverage Control Board

I 11 •U

Donovan Anderson, Chairperson

14• •'

Bobby Cato, Member

Jeni Hansen, Member

•• : , I , 11:0: • -

Edward S. Grandis, Member

I dissent from the position taken by the majority of the Board.

James Short, Member

Pursuant to D.C. Official Code§ 25-433(d)(l), any party adversely affected may file a Motion for Reconsideration of this decision within ten ( 10) days of service of this Order with the Alcoholic Beverage Regulation Administration, Reeves Center, 2000 14th Street, NW, 400S, Washington, D.C. 20009.

Also, pursuant to section 11 of the District of Columbia Administrative Procedure Act, Pub. L. 90-614, 82 Stat. 1209, D.C. Code§ 2-510 (2001), and Rule 15 of the District of Columbia Court of Appeals, any party adversely affected has the right to appeal this Order by filing a petition for review, within thirty (30) days of the date of service of this Order, with the District of Columbia Court of Appeals, 430 E Street, N.W., Washington, D.C. 20001. However, the timely filing of a Motion for Reconsideration pursuant to 23 DCMR § 1719.1 stays the time for filing a petition for review in the District of Columbia Court of Appeals until the Board rules on the motion. See D.C. App. Rule 15(b) (2004).

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