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"Reform of ABC Laws Is Imperative" (D.C. Quality of Life Coalition)

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  • Mark Lee / ATLAS
    RE: Reform of ABC Laws Is Imperative (D.C. Quality of Life Coalition) The InTowner Washington, DC November 2003 The District of Columbia Quality of Life
    Message 1 of 1 , Nov 15, 2003
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      "Reform of ABC Laws Is Imperative" (D.C. Quality of Li

      RE: "Reform of ABC Laws Is Imperative" (D.C. Quality of Life Coalition)

      The InTowner
      Washington, DC
      November 2003

      The District of Columbia Quality of Life Coalition
      Print Advertisement
      Page Four


      1. There Must Be Substantive Limits on "Voluntary Agreements" to Protect Cultural, Musical and First Amendment-Protected Activities.

      The use of "voluntary agreements" to infringe on the traditional role of restaurants, bars and clubs as venues for music and cultural and social expression is constitutionally unsound - on First Amendment, Due Process and Equal Protection grounds - and insupportable as a matter of policy. Restrictions on such activities, including live music, deejays, dancing, comedy, theatre and other performances, should not be permissible in "voluntary agreements." Restrictions on such activities should be available only through constitutionally valid procedures and only to the extent constitutionally permissible. A constitutionally valid approach is contained in the proposed Live Music and Entertainment Protection Act.

      2. There Must Be Substantive Limits on "Voluntary Agreements" to Prevent De Facto Repeal of Basic Statutory Parameters and Improper Intrusion on the Rights of Licensees and Patrons.

      "Voluntary agreements" should not be used to alter the basic statutory parameters of licensure as a restaurant, bar or club. Nor should they be permitted to interfere with the basic choices available to the business owner or undermine the economic value of the business or the license. "Voluntary agreements" should not be available to impose restrictions on hours of operation; to impose occupancy limits; to limit the sale or transfer of the business or the license; to prevent the licensee from charging a cover charge; or to restrict the licensee's right to advertise in any legally permissible manner.

      3. All Stakeholders Must Be Granted Standing to Participate Fully and Equally in All Licensing Matters.

      A fundamental flaw in the "voluntary agreement" process as it now stands is that all stakeholders are not represented - in particular, proponents of the license and the uses under that license are excluded from the "voluntary agreement" process, because only opponents have standing. This is an obvious Equal Protection and Due Process defect that must be rectified. Likewise, proponents cannot be parties in contested cases before the Board. Yet proponents clearly have as much a cognizable interest as opponents, and should be on an equal footing.

      4. A Balancing Test that Affirmatively Recognizes the Contribution of Licensed Establishments to the Cultural and Economic Vitality of the City Must Be Reincorporated into the Law.

      As originally enacted in 1986, the law contained a balancing test that specifically instructed the ABC Board to consider the establishment's contribution to the "cultural vitality" and "economic vitality" of the city when conducting proceedings on granting, revoking or placing conditions on licensure. One of the main intentions behind such language was to recognize, preserve and protect the role of licensed establishments as venues for musical, cultural and social expression and to recognize and support the role of such establishments as engines of economic growth and employment opportunities. The balancing test was later removed under pressure from extremist groups, leaving the Board disabled from considering the positive contributions of an establishment to the economic, social and cultural fabric of the city. This makes it impossible for a licensee in a contested case to argue the true value of what the licensee is offering or proposing to offer. It also has contributed to the unprecedented attack on music, entertainment and dancing that has become a hallmark feature of the current situation. An enlightened licensing system for restaurants, bars and clubs must contain a well thought out and comprehensive balancing test that gives due deference to the extraordinary cultural, social and economic value of such establishments. There is no conceivable rationale for the absence of such a balancing test in current law.

      5. There Should Be No Preemptive Limits by Board Action on the Ability of New Licensees to Offer Music, Entertainment and Dancing; to Charge Cover Charges; to Advertise; and to Maintain Statutory Operating Hours.

      As a general proposition, new licensees should be entitled to a presumption that they can and will responsibly enjoy all the statutory privileges of licensure and that their potential patrons are entitled to enjoy what the licensee wishes to offer within the parameters of the law. A prior interference with those privileges via "voluntary agreements" would be circumscribed under Principles 1 and 2 above. In the case of new licensees, there are certain basic statutory parameters that should not be subject to preemptive limits, even by action of the ABC Board. In particular, the ability to offer music, entertainment and dancing, to charge cover charges, to advertise and to maintain statutory operating hours should be considered intrinsic to any new license. Any limitations later imposed should be only by action of the Board, upon full hearing, with all stakeholders able to participate; based on documented problems of significant seriousness and duration; and with any curative restrictions narrowly tailored to address such documented problems. In order to be valid, and appropriate as a matter of public policy, restrictions must always be predicated on real problems, compelling evidence and fair process.

      6. Repeal the "Section 14(e) Petition" or "Referendum."

      The Section 14(e) petition or referendum is a process that only opponents may invoke in order to stop a new license application or a license transfer to a different location. The main use of it has been as a threat to create leverage to extract "voluntary agreements." When actually put into use, it is profoundly anti-democratic - arbitrarily granting a minuscule subset of the populace a life or death power over a matter of public policy; incredibly divisive; and horrifically expensive, both for the licensee and for the city, which has to conduct and supervise a mini "election." It actually subverts the orderly processes of governmental regulation and policymaking. The device is widely conceded to be bad public policy and there is no purpose in further delaying its repeal.

      7. Prohibit or Limit the Availability of Moratoriums on C and D Licenses.

      License Classes C and D denote restaurants, bars and clubs. Given the extraordinary importance of restaurants, bars and clubs as venues for music and culture, as the prime locus of social interaction, and as forces for economic growth and repopulation of the city, there should not be moratoriums on such uses. Moratoriums distort the market, encourage poor use of precious commercial space, do not encourage positive diversity of uses, and do not constitute a viable method of urban planning. The fear of lack of diversity of uses should be addressed by mechanisms for incentivizing uses thought lacking, not by prohibition of uses that the market clearly supports and which most people appreciate as the core of an exciting and rewarding urban life. Moratoriums do not serve the city at large, they only serve the interests of those small factions who seek them. If they are to be permitted at all, they must only be permitted if justified by clear and convincing evidence with the burden of proof on the proponents; must be available only in the most exigent circumstances; must be subject to a balancing test that recognizes the contribution of C and D establishments to the cultural, economic and social vitality of the city; and, because of their distorting, unpredictable and potentially irreversible effects, must be limited in duration to no more than two years, and be not renewable again for at least two years after expiration.

      8. There Should Be a Full-Time, Professional ABC Board and Mandatory Time Frames for the Hearing and Disposition of All Matters Before It.

      Everyone agrees that the work of the ABC Board is of major public importance. Because Board membership is not a full-time paid position, the ability to attract the best candidates is impaired, the workload far exceeds capacity, and the resolution of cases can be so protracted as to undermine the rights of all concerned. The District of Columbia needs and deserves a full-time, professional ABC Board. It should be composed of highly qualified individuals representing an array of relevant backgrounds and disciplines. Its composition should be reflective of a spectrum of interests and expertise, and should at minimum include expertise in legal and constitutional issues, urban economic development, civil rights and minority affairs, and arts and cultural advocacy. The creation of such a full-time Board would then make it possible to realize the goal of fair and timely resolution of all matters in accordance with mandatory statutory time frames for the hearing, consideration and disposition of all matters that come before the Board. A qualified, professional, full-time Board is long overdue and will be in the interest of all stakeholders and all affected parties.

      Paid for by The District of Columbia Quality of Life Coalition

      Mark Lee
      PO Box 53025   Washington, DC 20009-9025
      ATLAS InfoLine   202 331 4422
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