Page 1 DISTRICT OF COLUMBIA + + + + + ALCOHOLIC BEVERAGE CONTROL BOARD + + + + + MEETING þ------------------------------» : IN THE MATTER OF: : : Leeds The Way, LLC : t/a Hank

's Oyster Bar :Protest 1624 Q Street, NW :Hearing Retailer CR : License No. 71913 : Case No. 10-PRO-00094 : Termination of Voluntary : Agreement : : þ------------------------------¼ OCTOBER 13, 2010 The Alcoholic Beverage Control Board met in the Alcoholic Beverage Control Hearing Room, 1250 U Street, N.W., Washington, D.C., Charles Brodsky, Chairperson, presiding. PRESENT: CHARLES BRODSKY, Chairperson NICK ALBERTI, Member DONALD BROOKS, Member MITAL GANDHI, Member HERMAN JONES, Member CALVIN NOPHLIN, Member MICHAEL SILVERSTEIN, Member ALSO PRESENT: DAVID BAILEY, ABRA Neal R. Gross & Co., Inc. 202-234-4433

Page 2 T-A-B-L-E Opening Statements Mr. Kline for the Licensee. . . . . . . . . .111 Mr. Hibey for the Protestants . . . . . . . .113 O-F C-O-N-T-E-N-T-S

Closing Statements Mr. Kline for the Licensee. . . . . . . . . .372 Mr. Hibey for the Protestants . . . . . . . .374

Witnesses David Bailey. . . . . . . . . . . . . . . . . 96

Mikala Brennan. . . . . . . . . . . . . . . .116 Bill Zybach . . . . . . . . . . . . . . . . .127 Jamie Leeds . . . . . . . . . . . . . . . . .156 Jim McGrath . . . . . . . . . . . . . . . . .209 Mary Latka. . . . . . . . . . . . . . . . . .220 Abdi Poozesh. . . . . . . . . . . . . . . . .231 David Mallof. . . . . . . . . . . . . . . . .249

Robin Diener

334

Exhibits

5 Maps of the Neighborhood. . . . . . . . . . 98 Neal R. Gross & Co., Inc. 202-234-4433

Page 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 being here. MS. LEEDS: MR. HIBEY: Hi. Good afternoon. Mike Licensee. CHAIRMAN BRODSKY: Thank you for please? MR. KLINE: Good afternoon. CHAIRMAN BRODSKY: next case, please. P-R-O-C-E-E-D-I-N-G-S 1:08 p.m. Calling our

10-PRO-00094, Leeds the

Way, LLC, trades as Hank's Oyster Bar. Parties forward. Introductions,

Andrew Kline, non-lawyer representative on behalf of the Licensee. MS. LEEDS: MR. KLINE: Jamie Leeds. Principal of the

Hibey here on behalf of the individuals signatories to the Voluntary Agreement. Mallof is also here. Dave

He stepped out of the

room right before you called the case. CHAIRMAN BRODSKY: So, the two

Neal R. Gross & Co., Inc. 202-234-4433

Page 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Mr. Hibey. Neal R. Gross & Co., Inc. 202-234-4433 letter. CHAIRMAN BRODSKY: MR. HIBEY: He did? groups I have as Protestants are a group of five or more. Are you representing them? Yes. So, we have the

MR. HIBEY:

CHAIRMAN BRODSKY:

designated representative as Alexis Rieffel as the designated representative. here? MR. HIBEY: He's not. Okay. Do you Is that person

CHAIRMAN BRODSKY:

have a letter from the Group of Five or More stating that you're their designated representative? MR. HIBEY: I do not have a

I entered my

appearance into this matter about two weeks ago. CHAIRMAN BRODSKY: Alexis, or this guy Mr. Hibey? Okay. All right. This guy So, he's cool? You're good,

Page 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 in. And anybody else here for Hank's Oyster Bar, Leeds the Way? Mr. Hibey, who else? MR. HIBEY: I believe Robin Diener

is walking into the room, and I'm not sure whether -CHAIRMAN BRODSKY: Are you coming

forward as the District Dupont Circle Citizens Association? MS. DIENER: Yes. Sure, come on

CHAIRMAN BRODSKY:

Have a seat up front at the grown up's Your name, please? MS. DIENER: My name is Robin, R-

table.

O-B-I-N, traditional spelling, Diener, D-I-EN-E-R. CHAIRMAN BRODSKY: And you're

representing Dupont Circle Citizens Association? MS. DIENER: Yes. Okay. And,

CHAIRMAN BRODSKY: sir, your name?

Neal R. Gross & Co., Inc. 202-234-4433

Page 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 MR. MALLOF: Mallof, M-A-L-L-O-F. Yes, I am David

I'm a 27-year resident

of the District and I'm representing the Group of Six original signatories of, and current signatories of the Voluntary Agreement. CHAIRMAN BRODSKY: protest hearing. This is a

The matter comes before the

Board as a protest of Hank's Oyster Bar's petition to terminate its Voluntary Agreement. We know the Licensee is being represented by Mr. Andrew Kline. The Protestants are one, a

Group of Three or More Individuals who are being represented today by Mr. -- spell your last name for me? MR. HIBEY: Hibey, H-I-B-E-Y. Thank you. And

CHAIRMAN BRODSKY:

also the Dupont Circle Citizens Association represented by Robin Diener. Before we get started, I understand there are preliminary matters that need to be dispensed with prior to the parties' opening statements. Neal R. Gross & Co., Inc. 202-234-4433

Page 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 The first is a Licensee's Motion to Dismiss the Protest of Petition to Terminate the Voluntary Agreement. This is

the first preliminary matter is the Licensee's Motion to Dismiss the Protest of the Petition to Terminate Its Voluntary Agreement. The Licensee's Motion to Dismiss asserts that the requirements for terminating a Voluntary Agreement are the same as those required to met for an initial application or a substantial change in operation in that the Board must find that the Licensee meets the appropriate standards set forth in D.C. Code Section 25-313. Therefore, any person objecting to an action involving the license must timely notify the Board in writing of his or her intention to object and is required to state why the matter being objected to is inappropriate under one or more of the appropriateness standards set forth in D.C. Code Sections 25-313 and 25-314. Neal R. Gross & Co., Inc. 202-234-4433

Page 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 The Licensee alleges that the letters of objection filed by the Protestants fail to include any statement that the termination of the Voluntary Agreement will have an adverse impact on real property values, peace, order and quiet, residential parking needs, vehicular or pedestrian safety or any of the other standards set forth in D.C. Code 25-313 and 25-314. Therefore, the Licensee requests that the protests filed by the Protestants be dismissed for failure to enumerate one or more of these appropriateness standards. The Protestants filed an Opposition to Motion to Dismiss the Protest of the Petition to Terminate the Voluntary Agreement. The opposition asserts that the

requirements for terminating a Voluntary Agreement are not the same as those required to be met for an initial application or a substantial change in operation. Instead, the

Protestants argue that the Board follows D.C. Neal R. Gross & Co., Inc. 202-234-4433

Page 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Code Section 25-446 which relates to Voluntary Agreements and not to protests. This section requires the Board to make specific findings that are different from those findings required for initial applications or substantial changes. So, the

Protestants assert that they were not required to file timely objections under the appropriateness standards. Does either party have any oral remarks to make before the Board at this time to supplement the written filings already made? MR. KLINE: Yes, just briefly. I

would add that if our motion is denied, we're obviously left in sort of a quandary as to what it is that we are to put on. Because

normally the issues before this Board with respect to any action involving a license -the issue is appropriateness and that proceeding begins with protests filed on the basis of appropriateness, and then of course Neal R. Gross & Co., Inc. 202-234-4433

Page 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 gives the Licensee an opportunity to understand which of the criteria of appropriateness are being raised by the Protestants. In the absence of that, the

Licensee is completely in the dark as to which of the issues concerning the appropriateness of the establishment are being contested by the Protestants. MR. HIBEY: If I could respond? Yes, please.

CHAIRMAN BRODSKY: MR. HIBEY:

We'd like to add that The Licensee must

there is no quandary here.

meet a burden that is spelled out by the statute. Whether or not we're here, the

Licensee still must prove the same three things that you must find. So, our protest

has nothing to do with whether he's in a quandary or not. But beyond that, we've said from the beginning, at the roll call, at the status hearing and throughout this process that we object to termination of the Voluntary Neal R. Gross & Co., Inc. 202-234-4433

Page 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 say. Chairman. CHAIRMAN BRODSKY: MS. DIENER: You're welcome. add? MS. DIENER: Well, yes, thank you, Agreement on all grounds. CHAIRMAN BRODSKY: Anything to

And I just would like

to say I'm sorry there's no third table, because DCCA is not represented by counsel and we're here speaking on our own. And I am not

a lawyer, as will become clear if anyone asks me any technical questions. I just simply

want to say that from the point of view of the Dupont Circle Citizens Association this has nothing to do with the excellent operation of Hank's Oyster Bar, but rather the principle of the usefulness of the Voluntary Agreement in the neighborhood for our mixed-use commercial/residential areas. MR. MALLOF: I'd like to -CHAIRMAN BRODSKY: You're welcome. Thank you.

I have something to

Neal R. Gross & Co., Inc. 202-234-4433

Page 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 good. MR. MALLOF: Oh, shall I -No, no. If Sir? Is this gentleman

representing your group? PARTICIPANT: Yes. Okay. We're

CHAIRMAN BRODSKY:

CHAIRMAN BRODSKY:

you're speaking on behalf of everybody, okay. We're good. Mr. Gandhi? MEMBER GANDHI: Can you explain to

me how you laid out your opposition, how you laid out -- I think you mentioned in the remarks that you were opposed to the termination, correct? MR. HIBEY: Yes. How did you lay

MEMBER GANDHI:

that out and how did you let the Board know that you were opposed? the Licensee know? MR. HIBEY: I believe that goes And how did you let

back to the initial papers that were filed in this case before I was involved. My

Neal R. Gross & Co., Inc. 202-234-4433

Page 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 opposition doesn't lay out exactly what we oppose other than we're going to oppose all items they must prove. I believe the initial

objections have been the same from the beginning, that we've always opposed termination of the Voluntary Agreement. MEMBER GANDHI: Did you base that

off of any of the appropriateness standards listed on 25-313? MR. HIBEY: Well, yes. How so? That's

MEMBER GANDHI: what I'm asking. MR. HIBEY:

Well, our position is

that termination of the Voluntary Agreement will have an adverse impact on the neighborhood as determined under the appropriateness standard. MEMBER GANDHI: Where is that? for how? MR. HIBEY: In -Again, did you say Okay. Great.

Where did you say that except

MEMBER GANDHI:

Neal R. Gross & Co., Inc. 202-234-4433

Page 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 see that. MR. HIBEY: MR. MALLOF: Yes, go ahead. The Board has on the so -MEMBER GANDHI: Yes, I'd like to that in an email to the Board, in a letter to the Board? MR. HIBEY: initial filings. MEMBER GANDHI: MR. HIBEY: Okay. Great. I think that's in his

Which I didn't write,

record a timely-filed objection based on the placarding for termination from the current signatories of the Voluntary Agreement. It is

a very detailed letter of objection, multipage. Mr. Kline also responded to it and we

included a detailed PowerPoint presentation in addition that addressed all of his and the Licensee's reasons for requesting termination. That is on the record. sir. And in addition, if I may please Neal R. Gross & Co., Inc. 202-234-4433 That's about 15 pages,

Page 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 question. add, the whole premise of the Voluntary Agreement was arrived at because of a lack of appropriateness in our eyes, negotiations that led to then the Voluntary Agreement. We

addressed appropriateness and achieved a threshold of appropriateness that resulted in a signature originally that -- all we felt we needed to do as citizens was to respond to the request to terminate. We already have a

baseline set of concerns that were addressed regarding fundamental appropriateness of the license at that time. the underpinning. MEMBER GANDHI: Let me ask you a So, we think we've got

I did read -- was it a Dupont Correct?

Circle Citizens Association letter? MS. DIENER: From June? Yes.

MEMBER GANDHI: MS. DIENER:

Yes. I did read that.

MEMBER GANDHI:

Let me start there before I go to Mr. Mallof. MS. DIENER: Okay.

Neal R. Gross & Co., Inc. 202-234-4433

Page 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Okay. MEMBER GANDHI: Within that

letter, except for the first sentence in the second paragraph where you sort of mention peace, order and quiet, it didn't really have to relate to that VA, but did you cite any of the appropriateness standards in your letter, ma'am? MS. DIENER: I don't know. You don't know?

MEMBER GANDHI: That's fair enough.

Mr. Mallof, this is the letter you have dated June 28th? MR. MALLOF: Yes, sir. Is there a way

MEMBER GANDHI:

that you can just point out in the few pages that I have in front of me where you include the appropriateness standard? MR. MALLOF: We didn't feel

necessarily compelled to do that. MEMBER GANDHI: MR. MALLOF: Okay.

The placard said --

and forgive me, let me just take this down a Neal R. Gross & Co., Inc. 202-234-4433

Page 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 little bit of a notch. The placard said, sir, We

to request objections to termination. looked at the statute. Kline's filing.

We looked at Mr.

Mr. Kline's filing laid out

the very same statutory steps, I believe, that Mr. Hibey's talking about now. We as

citizens, without counsel, responded to what we believed were the statutory issues regarding termination and we laid those out here very specifically. And we attached, I

think, a very detailed and I hope credible set of responses to that. We talk about the fact

that -- I think in here we talk about the fact that the original finding of needing a Voluntary Agreement was based on appropriateness. It's sort of like to me

having to argue a second time why you were involved in something the first time. that's the whole premise here. MEMBER GANDHI: MR. MALLOF: Got it. I mean,

That we're here

because of appropriateness. Neal R. Gross & Co., Inc. 202-234-4433

Page 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 MEMBER GANDHI: MR. MALLOF: I understand.

Thank you. Mr. Kline, can I

MEMBER GANDHI: ask you a quick question? MR. KLINE:

Sure. I did read through

MEMBER GANDHI:

your motion as well and is there a way you can explain the basis that the appropriateness standard is absolutely necessary here even when you're talking about a termination of a VA? MR. KLINE: Yes, the whole

statutory scheme involving the issuance of alcoholic beverages licenses, their transfer and renewal, and substantial changes as well, is all based on the underpinning that there must be appropriateness, that the establishment must be appropriate for the section portion or locality, I believe is what the statute says, in which the establishment is located. 25-446, which governs Voluntary Neal R. Gross & Co., Inc. 202-234-4433

Page 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Agreements and their termination, relates to the renewal process. As part of that renewal

process one can request termination of the Voluntary Agreement. Now, in determining -Do you have your

MEMBER GANDHI: code book with you? MR. KLINE:

I do. Okay. Because

MEMBER GANDHI:

then I can follow along as well. MR. KLINE: Sure. So, you're saying

MEMBER GANDHI: under 25-446 what? MR. KLINE:

25-446(d) is the

provision which governs termination of Voluntary Agreements. And it starts out by

saying unless a shorter term is agreed upon between the parties, the VA runs for the term. That's (d)(1). (d)(2) then says that the

Board may accept an application to amend or terminate by fewer than all the parties in the following circumstances. There are two.

One, during their renewal period. Neal R. Gross & Co., Inc. 202-234-4433

Page 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 MEMBER GANDHI: MR. KLINE: Right.

And two, four years

from the date of the Board's decision initially approving the VA. MEMBER GANDHI: MR. KLINE: must be given. Yes.

Three says that notice

Four says that the Board may

approve the request if it makes the following findings based upon sworn evidence. three. There are The

Two of them apply to amendments.

third one applies to amendments and terminations, which would be (4)(C), which states the amendment or termination will not have an adverse impact on the neighborhood where the establishment is located as determined under 25-313 or 25-314 if applicable. Now, granted, I think the language is; I'll be kind, sloppy, but there is no standard given separate and apart from the underlying appropriateness standard that's contained in the statute. So, if the Board

Neal R. Gross & Co., Inc. 202-234-4433

Page 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 were to say well, gee, the plain language says that we must make a determination as to whether the termination will have an adverse impact on the neighborhood, there isn't any standard for the Board to do that. The only

underlying standard contained in the entire statute or the appropriateness standards which are contained in 25-313 and 25-314 -MEMBER GANDHI: What do you

consider the words "if applicable" to mean? "If applicable?" MR. KLINE: 314 would not

necessarily be applicable, because 314 applies to locations within footage of schools and so on and so forth. That wouldn't be applicable

in this case because this establishment is where it is. And if there's a school, then

that issue's already been determined, so that wouldn't be applicable. The provision -Do you think --

MEMBER GANDHI: I'm sorry to interrupt. MR. KLINE:

That's okay.

No

Neal R. Gross & Co., Inc. 202-234-4433

Page 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 problem. MEMBER GANDHI: As I think of a

question, I'm just going to ask you. MR. KLINE: No problem. But do you think

MEMBER GANDHI:

"if applicable" also can relate to 25-313, the way it's written? MR. KLINE: I'm not sure that I

understand your question, and then I'd have to look in terms of -MEMBER GANDHI: Because it says

the amendment to termination will not have an adverse impact on the neighborhood where the establishment is located as determined under 25-313 or 25-314, if applicable. MR. KLINE: Right. So, you're saying

MEMBER GANDHI:

if applicable is only for 25-314 and not to 25-313? Does that make sense? MR. KLINE: I think so, but I

think what's applicable is 25-313(4), which talks about a renewal, because that's what Neal R. Gross & Co., Inc. 202-234-4433

Page 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 we're dealing with here. In reading the

statute more carefully, it may be that what should have happened, and it didn't, is that the termination should have been combined with the renewal. I mean, in looking at the

language over the last few weeks more carefully, perhaps that's what should have happened, but I'm not sure that it's a distinction that has much of a difference. The point is it is part of the renewal process and we would either be here on a renewal that would be combined with the termination or, as we are today, the request for termination, if that's clear. MEMBER GANDHI: have any other comments? MR. HIBEY: two comments. Well, I have I guess Okay. And do you

One, that statute never

connects back to Section 311, which is the basis for his Motion to Dismiss. can't be involved in this matter. So, 311 We can't be 446

dismissed on 311 when it doesn't apply. Neal R. Gross & Co., Inc. 202-234-4433

Page 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 it's also -MEMBER GANDHI: MR. KLINE: 725 and 726 and -I mean, in never talks about Section 311. But more importantly -MEMBER GANDHI: Mr. Kline, where

does 311 stand in your argument to dismiss? MR. KLINE: It's not just 311,

Correct.

order to assert a protest under the regulations, one must assert one of the appropriateness grounds. Otherwise, we have

no way to determine whether a protest meets the threshold criteria. But in addition to those sections, 311 states that, 315 states that, and 25404(c) with respect to substantial changes says if there is no objection concerning appropriateness, then appropriateness is presumed. This is related to the renewal, so

this would actually come under 315, which relates to renewals. And as we recall under

313(b)(4), that incorporates 315, which Neal R. Gross & Co., Inc. 202-234-4433

Page 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 relates to renewals. And 315 of course deals

with the check sheet and history of compliance and so on and so forth. So indeed, the section which says that if there is no objection it's deemed appropriate is incorporated into 313 as it relates to renewals. MEMBER GANDHI: MR. HIBEY: Okay.

It's not incorporated.

I mean, the Board must make three findings. Now he's saying that the Board can just presume one of those three findings you must make? MEMBER GANDHI: He's saying it's

in the regulations as well though. MR. HIBEY: But the statute is

clear that the Board has to make three findings, and he's saying you can presume one of those findings. at all. I want to also go back to a point that was raised earlier when he read through Neal R. Gross & Co., Inc. 202-234-4433 That's not in the statute

Page 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 the statute. The Licensee made the point that

under part 4 of 446(d) that Sections A and B are inapplicable to this proceeding, and that is incorrect. The correct reading of the

statute is that the Licensee -- the burden's on the Licensee to prove to the Board (A), (B) and (C), all three of those. through that further -MEMBER GANDHI: fewer than all parties -MR. HIBEY: -- but I think we're -- request by And I can walk

getting into more than we need to at this point. MEMBER GANDHI: more, because -MR. HIBEY: Did you want me to -Yes, because I'll Well, it's not

MEMBER GANDHI:

be honest with you, I mean, there's a Motion to Dismiss your protest, so I mean, we may not even be here. So, I don't think it's more.

I think that you need to explain yourself so that we all can move forward. Neal R. Gross & Co., Inc. 202-234-4433

Page 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 into -MEMBER GANDHI: I mean, I wouldn't mean -MR. HIBEY: Yes. -- you know, don't MR. HIBEY: Okay. All right. I

MEMBER GANDHI:

No offense.

MEMBER GANDHI:

think that this is just a frivolous exercise, because it's not. MR. HIBEY: Okay. But this gets

have spent that much time on it if it was a frivolous exercise. MR. HIBEY: our Motion to Dismiss. MEMBER GANDHI: MR. HIBEY: Okay. Yes, this gets into

And I'm not sure how

much you want me to get into that, but I'll go through it right now. Under Section 25-446(d)(4) it says, "The Board may approve a request by fewer than all the parties to amend or terminate a Voluntary Agreement for good cause Neal R. Gross & Co., Inc. 202-234-4433

Page 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 you? motion. CHAIRMAN BRODSKY: getting into the -MEMBER GANDHI: That's okay. CHAIRMAN BRODSKY: Yes, why don't Is that okay with Yes, they're We got ours. MR. HIBEY: clearly says each -MEMBER GANDHI: motion though, or is it -MR. HIBEY: I'm getting into the Is this your So, Section (4) Okay. shown if it makes each of the following findings based upon sworn evidence." MEMBER GANDHI: Got it. MR. HIBEY: (d)(4). Yes. You're 446(d).

MEMBER GANDHI: MR. HIBEY: everyone needs them. MEMBER GANDHI:

I have copies if

Yes, we got it.

we just -- I'm going to go here -- I'm going Neal R. Gross & Co., Inc. 202-234-4433

Page 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Board? MR. HIBEY: Well, I'm sorry. I hold off -CHAIRMAN BRODSKY: Hang on. I'm to read through this and we'll get to it next. MEMBER GANDHI: Okay. So why don't we

CHAIRMAN BRODSKY:

wait until the next section and then we'll get a chance to -- give us all -MEMBER GANDHI: to read it now? CHAIRMAN BRODSKY: MR. HIBEY: Yes. Okay. Do you want

So, we're going to

just going to read a few more things and we're going to get to that, because we're going to talk about the Motion to Dismiss the Petition to Terminate the Voluntary Agreement. Any other questions from the

did have another point on the other motion, on the first one we just discussed. CHAIRMAN BRODSKY: MR. HIBEY: Yes, please.

Do you want me to go

Neal R. Gross & Co., Inc. 202-234-4433

Page 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 to a filing. MEMBER GANDHI: pages in front of me. Neal R. Gross & Co., Inc. 202-234-4433 I only have four clear. MR. HIBEY: And in the June letter back to that? CHAIRMAN BRODSKY: MR. HIBEY: Okay. Yes. The fact is we

didn't have to object timely under appropriateness, but we did. And that's in

the filings already before the Board and submitted to the other side. Back in June the

letter that Mr. Mallof referenced, it includes language that we object to termination of the Voluntary Agreement and it -MEMBER GANDHI: Yes, that's pretty

it also attaches the previous protest letter from when this all began, and those are the same reasons why we object. MEMBER GANDHI: protest letter? MR. HIBEY: It was an attachment Where's that

Page 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 attachments? 28th? MR. HIBEY: I'm looking at a June than that. MR. HIBEY: There was a lot more

There was also an attachment that

had PowerPoint slides that laid out additional concerns about appropriateness. been filed. MR. MALLOF: If I may, there were One I mean, it's

two attachments to that letter submitted. was the PowerPoint and the other was the original protest letter. MEMBER GANDHI: Okay. You're

talking about the June 28th letter? MR. HIBEY: Yes. There was a June

28th and there was a June 7th. MEMBER GANDHI: When was the

Where are the attachments, June

7th one that says the protest letter is attached. MEMBER GANDHI: Okay. The

attachments you're talking about, the protest letter as well as all the PowerPoint slides Neal R. Gross & Co., Inc. 202-234-4433

Page 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 June 28th? MR. HIBEY: The letter from June that you were talking about, is that on the June 7th letter or the June 28th letter? MR. HIBEY: the protest letter. I know June 7th has

June 7th. So you're saying

MEMBER GANDHI:

7th references a protest letter attached. MR. MALLOF: And the letter from

June 7th is a request to re-placard and to clarify what it is that needs to be modified. MEMBER GANDHI: have a copy of that? MR. HIBEY: I have a copy of the Do All right. Do you

letter, not all the attachments with me. you want the letter? MEMBER GANDHI: what we're talking about. MR. HIBEY: MR. KLINE: I think it is --

Just so we know

Just for the record, I

believe we're talking about a June 7th motion to the Board to request Hank's Oyster Bar to Neal R. Gross & Co., Inc. 202-234-4433

Page 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 our -MEMBER GANDHI: Are you saying with -MR. HIBEY: The entire basis of clarify its petition and to refile, and for ABRA to then re-placard Hank's Request to Terminate Its In-Force and Contractual Voluntary Agreement with community residents dated May 4th, 2005. It was a motion that was

filed and the Board subsequently ruled and denied the motion. we're talking about. MEMBER GANDHI: about the motion? MR. MALLOF: And I believe the You're talking I believe that's what

Board's denial doesn't mention anything about appropriateness anywhere. MR. HIBEY: It doesn't matter.

What I'm saying is the appropriateness factors were raised a long time ago in the motion, in the letter. We attached the protest letter. MEMBER GANDHI: So, you're saying

Neal R. Gross & Co., Inc. 202-234-4433

Page 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 along with your motion on June 7th that that was also a part of the record and a part of your opposition to the termination of the Voluntary Agreement? MR. HIBEY: Yes. And what do you

MEMBER GANDHI: think about that, Mr. Kline? MR. KLINE: captioned as a motion. motion.

The letter is It was treated as a

We treated it as a motion, since The Board treated

that's what it was called.

it as a motion and the motion was to require the Applicant to refile or to re-placard. The

Board dealt with that motion, issued an order denying that motion. So we certainly did not

take that at that time as a protest of the request to terminate the Voluntary Agreement. The protest letter is the one dated June 28th, 2010. It has no attachments, not my copy. And

There are none referenced in the letter.

I find nothing; and I've scrubbed it several times, in this letter which says that Neal R. Gross & Co., Inc. 202-234-4433

Page 35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 appropriateness is an issue. I mean, they say

everything's untrue and that the agreement remains in force, and this is a contract and a whole lot of things regarding issues that are not related to the statutory scheme which sets forth specific issues of appropriateness. There is nothing in the letter. MEMBER GANDHI: Well, the June

28th letter says via email PDF with attachment. just curious. So, where's the attachment? I'm

I mean, it's sort of important

that we -- does anyone have the attachment? MR. MALLOF: The attachment, sir,

if I may, i sin Mr. Moosally's inbox, Ms. Jenkins' inbox, Mr. Brodsky's inbox. there. MEMBER GANDHI: MR. KLINE: Okay. It is

It was not served with

the copy of the letter that we received. MR. MALLOF: Yes, and I don't

believe -- I'm not sure, Mr. Kline, on the 28th or on the 7th if we copied you. I

Neal R. Gross & Co., Inc. 202-234-4433

Page 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 believe the Board copied you. CHAIRMAN BRODSKY: All right.

We're going to go check for that and hopefully get a copy of it brought down to the Board. We're going to take up our second motion, the Protestant's Motion to Dismiss the Petition to Terminate the Voluntary Agreement. This second preliminary matter is the Protestant's Motion to Dismiss Licensee's Petition to Terminate Its Voluntary Agreement. The Protestant's Motion to Dismiss argues that the Board should dismiss the petition to terminate the Voluntary Agreement because the Licensee did not attach a sworn affidavit to fulfill the good faith attempt criteria of D.C. Code Section 25-446(d)(4)(A)(2). The

Licensee contradicts this argument by pointing out the request for Voluntary Agreement termination does not require that the Licensee make efforts to reach agreement because termination is not mentioned in either (4)(A) or (4)(B). Neal R. Gross & Co., Inc. 202-234-4433

Page 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Does either party have oral remarks to make before the Board in addition to supplement its written filings? MR. HIBEY: Yes. I wanted to go

back to the statute first, I guess, which is where I was getting into before we started to get into this motion. Section 446(d)(4) states that, "The Board may approve a request of fewer than all the parties to amend or terminate a Voluntary Agreement for good cause shown if it makes each of the following findings based upon sworn evidence." Okay. Then the statute All

continues with an (A), a (B) and a (C).

three of those must be found when the Board is asked to terminate a Voluntary Agreement. They don't just some of them apply to amendment and some of them apply to termination. written. That is not how the statute's

And you know this because in Section

(4) it requires the Board to make each of the following findings. And then as you continue

Neal R. Gross & Co., Inc. 202-234-4433

Page 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 "if." Neal R. Gross & Co., Inc. 202-234-4433 defines -CHAIRMAN BRODSKY: (a)(1) says the on, you can see under (a)(2), if non-Applicant parties are located, the Applicant has made a good faith attempt to negotiate a mutuallyacceptable amendment to the Voluntary Agreement. must find. Now, the Licensee is saying, well, we just want a termination. We don't want an That's something that the Board

amendment, so this doesn't apply to us. That's wrong. (a)(2). The Applicant still has to meet

The Applicant has to make a good

faith attempt to negotiate a mutuallyacceptable amendment. CHAIRMAN BRODSKY: overlook the word "or?" MR. HIBEY: The word "or" How do you

Applicant seeking the amendment has made a diligent effort to locate all parties, or -MR. HIBEY: Or. And then it says

Page 39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 CHAIRMAN BRODSKY: MR. HIBEY: Right.

Because the "if" is a It's not either

yes, you disregard the (1). or. MEMBER GANDHI: MR. HIBEY: found, you must do (2). CHAIRMAN BRODSKY: parties are located."

It's a yes.

It's if they're then

"When Applicant

Well, I'm not so sure

what you're getting at here, but okay. MR. HIBEY: Well, I'm getting at

that the Applicant must make a good faith attempt to negotiate a mutually-acceptable amendment and the Applicant has never done that. CHAIRMAN BRODSKY: You're alleging

the Applicant has never done that? MR. HIBEY: Well, yes. Okay.

CHAIRMAN BRODSKY: MR. HIBEY: it's also true. CHAIRMAN BRODSKY:

I'm alleging that and

Okay.

Neal R. Gross & Co., Inc. 202-234-4433

Page 40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 MR. HIBEY: The only way to And

fulfill (a)(2) is in Section 5 beneath. it says to fulfill the good faith attempt

criteria of paragraph (4)(A)(2), this is what you have to do. And it requires a sworn

affidavit at the time of filing the application. There's two issues here. One, a

sworn affidavit was never filed, so you can never find (a)(2) met in this case. Number

two, a sworn affidavit could not be filed, because as Mr. Kline has indicated to us and again in his opposition papers, he never sought an amendment. He never made a good

faith attempt to amend the Voluntary Agreement, because as he says, he just wants termination. requires. But that's not what the statute

You must first make a good faith I don't care if all you Every restaurant and bar You must first make the And the only way to show

attempt to amend.

want is termination. wants termination. good faith attempt.

Neal R. Gross & Co., Inc. 202-234-4433

Page 41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 it is through a sworn affidavit, which doesn't exist. But even if it did exist, it -- well,

it couldn't exist because he has said time and again we never made an attempt at good faith negotiations to amend because we just want termination. That's the basis of our motion. CHAIRMAN BRODSKY: Well, so my

question is, I'm looking at a letter sent to us by I believe it was Mr. Kline. by Mr. Kline. Yes, signed

It's the Petition to Amend or And I'm

Terminate a Voluntary Agreement.

looking at No. 3, point No. 3, point No. 4, point No. 5, point No. 6, which all talk about reaching out, trying to contact people, Mr. Mallof, Mr. Diener. forth. There was some back and So, I'm

There's dates, there's times.

not so sure I understand when you say it's a fact that nobody tried to communicate about this. Are you saying that he perjured

himself, that he filed a false statement? MR. HIBEY: What I'm saying is he

never made a good faith attempt to negotiate Neal R. Gross & Co., Inc. 202-234-4433

Page 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 an amendment. CHAIRMAN BRODSKY: reached out, allegedly right? reading off here. Well, he Okay. I'm just

February, March, a couple

times in February, March, again in -- I mean, there's a couple of times it seems like he's reaching out. And from what I read here, it

says, "Mr. Mallof indicated he did not believe a meeting would be productive as he did not believe it was time to revisit the Voluntary Agreement." faith? MR. HIBEY: My understanding, that How does that translate into good

the communication was we need to talk about termination. That was it. That's not a good

faith attempt to negotiate an amendment, that Mr. -CHAIRMAN BRODSKY: Well, it is if

you don't believe you should have one. MR. HIBEY: It doesn't matter.

The statute requires a good faith attempt to negotiate an amendment. Neal R. Gross & Co., Inc. 202-234-4433

Page 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 out. CHAIRMAN BRODSKY: So did you guys

just refuse to meet with the Applicant? MR. HIBEY: No. Then how come

CHAIRMAN BRODSKY: you never met? MR. HIBEY:

Because we asked for

terms why we were meeting and there was no response. That's my understanding. CHAIRMAN BRODSKY: So they reached

So, you don't disagree that they reached

out and tried to contact you? MR. HIBEY: What I disagree with

is the characterization of the reaching out. Reaching how to be -CHAIRMAN BRODSKY: Well, that

doesn't necessarily mean that they agree with your position. MR. HIBEY: No. It just means

CHAIRMAN BRODSKY: they reached out in good faith. MR. HIBEY:

In good faith -Yes.

CHAIRMAN BRODSKY:

Neal R. Gross & Co., Inc. 202-234-4433

Page 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 MR. HIBEY: -- to reach a The only

mutually-agreeable amendment.

contact was we want to terminate. CHAIRMAN BRODSKY: Well, what's

mutually agreeable to each of you is different, right? That's the whole idea

behind having different sides of a debate. MR. HIBEY: Right. The fact that

CHAIRMAN BRODSKY:

they reached out to you, they fulfilled their good faith obligation to reach out, not that they have to agree with you. MR. HIBEY: to reach out. CHAIRMAN BRODSKY: I'm just No, no. It's not just

disagreeing with your characterization of the word "good faith." That's all. But it's a -- I'm

MR. HIBEY:

sorry, the statute says good faith attempt to negotiate a mutually-acceptable amendment. It's not just to talk about it. to talk. It's not just

The point of it is we want Neal R. Gross & Co., Inc. 202-234-4433

Page 45 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Kline? MR. KLINE: Yes. Did you participate Okay. amendments, not terminations. CHAIRMAN BRODSKY: Well, I guess

the other side wants something different. MR. HIBEY: Right. There you go.

CHAIRMAN BRODSKY: MR. HIBEY: written as is. CHAIRMAN BRODSKY: Thank you. MEMBER JONES:

But the statute's

I understand.

Mr. Chair? Yes, Mr. Jones?

CHAIRMAN BRODSKY: MEMBER JONES: clarification question? CHAIRMAN BRODSKY: MEMBER JONES:

Just may I ask a

Yes, sir. Mr.

Thank you.

MEMBER JONES:

in a mediation hearing with Ms. Fletcher regarding this item on August 17th at approximately 1:00 p.m.? MR. KLINE: Mediation in

Neal R. Gross & Co., Inc. 202-234-4433

Page 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 sir. Neal R. Gross & Co., Inc. 202-234-4433 record. connection with the termination request? MEMBER JONES: MR. KLINE: Yes.

Yes, we did. You did?

MEMBER JONES: MR. KLINE:

Yes. Okay. Do you

MEMBER JONES:

happen to remember what parties were there assembled? If you don't, that's fine. MR. KLINE: I don't off hand. I think we have the

MEMBER JONES: Okay.

In that meeting what was the intent, as you saw it? As you were

representing this Licensee, what did you see as the intent of that mediation meeting? MR. KLINE: To resolve the issues

related to the request for termination of the Voluntary Agreement. MEMBER JONES: Okay. Thank you.

Thank you, Mr. Chairman. CHAIRMAN BRODSKY: You're welcome,

Page 47 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 step, too. than that. MEMBER GANDHI: You're arguing Any other questions? MEMBER GANDHI: Mr. Gandhi?

So, are you

arguing that it just wasn't good faith? MR. HIBEY: No, I'm arguing more

that it was a termination, not an amendment, that all they wanted is termination and not an amendment? MR. HIBEY: Yes, but -And the statute

MEMBER GANDHI:

talks about amending, not termination, correct? MR. HIBEY: Right, the statute

says you need to make a good faith attempt to negotiate a mutually-acceptable amendment. But I'd also like to back up a And the only way the Board can

find that that has been done is defined in Section 5, and it's by the sworn affidavit, which doesn't exist. MEMBER GANDHI: Do you think one

Neal R. Gross & Co., Inc. 202-234-4433

Page 48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 clear. could argue that the petition that the Chairman just read off of could be that sworn affidavit? MR. HIBEY: No, the statute's

If it was permissible to just file a

petition without a sworn affidavit, it wouldn't go to the great length of adding Section 5. provisions. MEMBER GANDHI: Mr. Kline, I'll The statute's only got a few

let you respond, if you'd like. MR. KLINE: Yes, two points. One

is I believe it's in the record and in fact it's attached to our petition. There's an

email from me to Mr. Mallof dated February 24th, 2010, 6:18 p.m. "Dave, when we spoke

today you indicated you did not believe it is time to revisit the Voluntary Agreement for Hank's Oyster Bar. Accordingly, although you

indicated you do not speak for the others, you see no point in meeting to discuss the matter. You indicated that you would however speak Neal R. Gross & Co., Inc. 202-234-4433

Page 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 with the other signatories to the VA to see if they feel differently." The letter goes on

and concludes with, "I am keeping March 10 at 10:00 a.m. available in case you are willing to meet. Please let me know whether you will

be coming." So, I mean, in terms of discussion of a termination, discussion of an amendment, the issue was more general than that. get together. Agreement. Let's

Let's talk about the Voluntary

This is the first time in three

pleadings which have been filed by the Protestants that it's alleged that the Licensee was unwilling to meet, and frankly, it's just simply not true. More importantly than that, let's look at the statute. Mr. Hibey's argument We just

ignores two words in the statute.

presume we construe statutes that words are in the statute for a reason. And if one looks at

(d)(4)(A), (B) and (C), it says the Board must find, and Mr. Hibey said (A), (B) and (C). Neal R. Gross & Co., Inc. 202-234-4433

Page 50 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 (A) says the Applicant seeking the amendment has made a diligent effort. (B) says the need

for an amendment is caused by a change in circumstances or is due to a change in the neighborhood. termination. termination. Now, if there's no distinction, why are the words "or termination" in there? If amendments were treated exactly the same as terminations, then in (C) the word "termination" would not appear. It would be (C) says the amendment or For the first time we talk about

consistent and it would say the party seeking the amendment has to do (A), the party seeking the amendment has to do (B), the party seeking the amendment has to do (C). Instead what we

have is the party seeking amendment has to do (A), the party seeking amendment has to do (B), the party seeking amendment or termination has to do (C). Now, if Mr. Hibey's argument is persuasive, then the Board has to conclude Neal R. Gross & Co., Inc. 202-234-4433

Page 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 that those words "or termination" were not put in the statute for any particular reason, and that just simply defies the rules of statutory construction. Words are in a statute because

they have meaning. Now, granted the introductory section says you have to prove each of the following, but then when you get to the details in terms of what must be proven, termination only requires the third element. The details have to control over the general. That's another rule of statutory construction. So, it's our position that when you're talking about a termination, there's only one thing that has to be shown and that's appropriateness. We come back to

appropriateness, which this Board deals with week in and week out with respect to new applications, renewals, substantial changes, and we all know what the standards and the criteria are. CHAIRMAN BRODSKY: Mr. Hibey?

Neal R. Gross & Co., Inc. 202-234-4433

Page 52 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 MR. HIBEY: Yes, his argument is

premised on reading all the words and giving meaning to all the words. You must give

meaning to the words "or terminate" in the clause above it in Section (4), which defines everything that follows. And you must give The way this is

meaning to the word "each."

written is if you want termination, you must first do (A) and (B). You must first show

that you've reached out and made a good faith attempt to amend, because an amendment is less than a termination. Then you must next show You

that there's a need for an amendment.

have to at least have a need for an amendment to get to the point of termination. what (B)'s about. together. That's

And then (C) ties them all

For both of them, you need --

because you're going down it step by step. You need both to terminate. Now, if you accept the Licensee's argument, his argument is that you can terminate a Voluntary Agreement, an agreement Neal R. Gross & Co., Inc. 202-234-4433

Page 53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 that was entered in this case just a little over five years ago just by showing appropriateness. You don't even need to show You just need to show

a need to terminate. appropriateness.

CHAIRMAN BRODSKY:

Isn't one of

the reasons that you can terminate a Voluntary Agreement time? So, if more than four years

have passed since the date of a Board's decision approving a Voluntary Agreement, if more than four years passes isn't that a reason to seek termination? MR. HIBEY: seek termination. That's when you can

It's not a reason the Board

can find to approve the petition. CHAIRMAN BRODSKY: No, I'm saying Okay.

but that is one of the criteria, right? MR. HIBEY:

That is the criteria But

for the Board to accept an application.

to approve the application there are three findings the Board must make. one. It's not just

You can't just skip over the first two Neal R. Gross & Co., Inc. 202-234-4433

Page 54 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 item 4. because he wants to go further and not amend it. He wants to terminate the whole thing.

So now we have a much lower standard to terminate than to amend? couldn't be more clear. MR. KLINE: PARTICIPANT: That we disagree on. We all would. Yes, and this is The statutes

MEMBER ALBERTI:

slightly off-track, but I'm hanging on the words of the statute as Mr. Kline instructed, because it says the Board may approve a request by fewer than all parties to amend or terminate a Voluntary Agreement for good cause shown if it makes each of the following findings based upon sworn evidence. And then I go down to -- this is Then I go down to (4)(C) and it says

the amendment or termination will not have an adverse impact on the neighborhood where the establishment is located. I have the Petition to Terminate. Can each of the parties speak to me where that Neal R. Gross & Co., Inc. 202-234-4433

Page 55 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 we need to? MR. KLINE: Our position is -Is the Board represents sworn evidence? I mean, my

question is is not whether we can accept the application, but about whether we can terminate without that sworn evidence, because the statute is very clear when it says we need sworn evidence. And so I'd like to hear from

both parties about whether or not they believe the Board has sworn evidence on which to base a decision of termination. MR. KLINE: Mr. Kline? We certainly

Sure.

are prepared to put on sworn evidence today concerning termination, concerning appropriateness, concerning the other two prongs if the Board feels that it's applicable to a termination. MEMBER ALBERTI: My question is do

MEMBER ALBERTI:

obligated to receive that sworn evidence by a statute? MR. KLINE: Two points. One is

Neal R. Gross & Co., Inc. 202-234-4433

Page 56 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 That's fine. our position is under (A) and (B) sworn evidence with respect to those issues only relates to an amendment, not a termination. MEMBER ALBERTI: MR. KLINE: I understand.

And three, with

respect to appropriateness, yes, sworn evidence is necessary unless appropriateness is presumed, because under 25-315 no timely protest articulating a protest ground has been filed. MEMBER BROOKS: that connection. Okay. And just -- go ahead. Okay. If you draw

MR. KLINE: Thank you. MR. HIBEY:

This sort of goes back

to another issue, but there's no sworn evidence right now in front of the Board. the Board can't make these findings until sworn evidence is put on. But what the Board So,

can do is realize that sworn evidence can never come in on (4)(a) in this proceeding, so it must be dismissed. Thank you.

Neal R. Gross & Co., Inc. 202-234-4433

Page 57 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 MR. KLINE: Mr. Chair, if I may.

I remembered the point I was going to make. The reason there's a difference between termination and amendment is the obvious one that I think has really been argued by the Protestants, which is there's no point in talking about an amendment if the party seeks termination. Why should the

parties be forced to meet and say, well, gee, we want to terminate. want you to terminate. Great meeting. Well, gee, we don't Have a nice day.

That's why there's a

difference and a distinction in the statute between the grounds for termination and the grounds for amendment. Ultimately ABC

Licensee's conduct is governed by this Board. Now, in the past few years I think we've gotten away from that a bit with the proliferation of Voluntary Agreements, but ultimately it's this Board that determines whether an establishment is appropriate. A

Voluntary Agreement is simply a mechanism for Neal R. Gross & Co., Inc. 202-234-4433

Page 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 settling a dispute. It's no more than that.

It's become more than that unfortunately. But given that, it seems perfectly logical that, yes, the standard would be different if you want to terminate because you're throwing it back to the Board and saying, you know, we're appropriate without a Voluntary Agreement, we're appropriate as is. Board decide. If parties have problems with

that and they can file a protest and articulate one or more of the appropriateness grounds for contesting the appropriateness of the establishment. MEMBER ALBERTI: CHAIRMAN BRODSKY: MEMBER ALBERTI: Mr. Chair? Mr. Alberti? And both of you

can respond to this, but when I look at the word "amendment," in some way one could assume under the definition of amendment you have a termination that's subsumed. I mean, isn't Negation

termination the ultimate amendment? of the contract.

Isn't that the final

Neal R. Gross & Co., Inc. 202-234-4433

Page 59 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 amendment? MR. KLINE: I would agree with you

if (C) did not make a distinction that is not found in (A) and (B), because all of a sudden, if that's true -- and I agree that would be appropriate if "or termination" was not there. But when those words appear, we have to look at those words and say, well, gee, why are they there? And the only conclusion I can

come to is that the reason that they're there is because there's a difference between an amendment or a termination. MR. HIBEY: And there is a

difference, but that doesn't mean (A) and (B) don't apply. To get to the stage of

termination you have to first show that there's a need to at least amendment. You

have to first show that you've at least a good faith attempt to amend. written that way. The statute is

The Board must make each of It applies to To now say the

the following findings.

amendments and terminations.

Neal R. Gross & Co., Inc. 202-234-4433

Page 60 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Board must only make one finding for a termination, when that is a step beyond an amendment, doesn't make any sense. To terminate under Mr. Kline's reading of this statute, all you have to do is come in and say, well, if we terminate, we're not going to have an adverse impact. You

don't even have to show that there's a need to terminate a valid Voluntary Agreement that the Board has entered as an order. So, they don't

need to show any need to do this. CHAIRMAN BRODSKY: you're saying? MR. HIBEY: Yes. Mr. Hibey, there To terminate,

MEMBER ALBERTI:

was an admission that there was a mediation taking place, right? There was a mediation

between the two parties that place? MR. HIBEY: Yes. I mean, isn't it

MEMBER ALBERTI:

reasonable to construe that that was a time -whether one party was using the word Neal R. Gross & Co., Inc. 202-234-4433

Page 61 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 "termination" or not, isn't it reasonable to construe that that was the time where you were to be talking about amending short of termination? MR. HIBEY: Yes. Well, then a good

MEMBER ALBERTI: faith was made. MR. HIBEY: No.

No, you must make

a good faith effort to amend, and no effort was made to amend. we're terminating. All he came in and said is That's it. And that

doesn't meet the statute. MEMBER ALBERTI: MR. HIBEY: Okay.

I know you might think

that it's silly that he has to do that, but that's what the statute requires and the Board must find that that has been done. MR. KLINE: did it anyway. It is silly, but we

In fact, letters of record at The letters are They've So

this point demonstrate that. there.

The Board has the letters.

never been disputed in the three motions. Neal R. Gross & Co., Inc. 202-234-4433

Page 62 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 interject. Diener? MS. DIENER: If I just may if we're hearing that it didn't happen, that's certainly news to us today, because I mean, we have the emails, we have the letters that the contacts were made and that the Protestants refused to meet. MS. DIENER: Mr. Chairman? Yes, Ms.

CHAIRMAN BRODSKY:

I made several attempts on behalf I see her

of DCCA to speak to Ms. Leeds. around the neighborhood.

I live just about a And

half-a-black away from her establishment. she did say she would get in touch with me.

She said she wanted to meet with her lawyer. And I said, well, I don't know why that's necessary, but of course. came to fruition. And we did participate, DCCA did participate then in the actual mediations. And I must say I asked on several occasions how can we work with you to amend? Because But those never

Neal R. Gross & Co., Inc. 202-234-4433

Page 63 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 that is what the neighborhood would like. like these Voluntary Agreements. they're helpful. We think We

I understand you don't want

it, but we would like to be able to work with you to try to reach an amendment, and we're told flat out no, she did not want a VA. She

did not need a VA and she doesn't deserve one. And that's -- certainly she's entitled to her opinion, but it made it impossible to have a discussion about amendment, in our view. CHAIRMAN BRODSKY: Ms. Diener, did

it ever occur to you that somebody just doesn't want a Voluntary Agreement on their business? MS. DIENER: Oh, yes. And that

CHAIRMAN BRODSKY:

they're not even willing to discuss it with you, because they just don't want one, even if it only had in it that you got to pick up your trash every Monday, or you got to keep your shrubs trimmed? them. Neal R. Gross & Co., Inc. 202-234-4433 Some people just don't want

Page 64 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 right? yes. CHAIRMAN BRODSKY: Well, yes, MS. DIENER: I understand that. And the in

CHAIRMAN BRODSKY:

original creation of a Voluntary Agreement, they're really prescriptive in nature, right? A Licensee did something bad, operated in some bad manner and so a Voluntary Agreement was brought together to try to address a problem. But they were prescriptive, right? weren't as of right. They

It's not like when you

become a Licensee that you got to go get your Voluntary Agreement. right thing. So, what I didn't understand, Mr. Hibey, that you said was you said something about the Licensee doesn't need to show a need to terminate, they can just file to terminate? MR. HIBEY: Under his reading, They're not an as of

I mean, I don't want a Voluntary

Agreement, so I'm going to file to terminate it. I'm not in a good faith negotiation with Neal R. Gross & Co., Inc. 202-234-4433

Page 65 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 very much. CHAIRMAN BRODSKY: You're welcome. to that. Mr. Mallof, you have something? MR. MALLOF: Yes, sir. Thank you that. CHAIRMAN BRODSKY: We're getting you guys to try to make a thing I don't like less not likeable. my business. I just don't want one on And

That's their perspective.

they're perfectly valid right. not -MR. HIBEY:

I mean, that's

But that's not a

ground to terminate a Voluntary Agreement. CHAIRMAN BRODSKY: Well, if it's

after four years and you do some other stuff, I guess it is. MR. HIBEY: Right, and the other

stuff is what we're talking about. CHAIRMAN BRODSKY: getting to that, right? MR. HIBEY: But they haven't done Well, we're

Neal R. Gross & Co., Inc. 202-234-4433

Page 66 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 you. MR. MALLOF: I'm sorry. Mr. Mallof, MR. MALLOF: Just for the record

we have a letter signed by -- and it's in my language, signed by me, Lex and Robin, who attended the mediation on the 18th. are afraid of this process. Citizens

And we don't want

to be viewed and we dont' want to feel for the good of our neighborhoods that we are not willing to talk and negotiate. twice in that meeting. Robin asked

Ms. Fletcher was there

as a witness and it's not a confidential -MR. KLINE: MR. MALLOF: Excuse me. -- it's not a

confidential aspect of the mediation. MR. KLINE: If he's going to get

into what happened in the mediation, I will object. MR. MALLOF: It's the agenda item. I agree with

CHAIRMAN BRODSKY:

CHAIRMAN BRODSKY:

please don't talk about anything that happened Neal R. Gross & Co., Inc. 202-234-4433

Page 67 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 agenda. in the mediation. MR. MALLOF: Well, if I may, sir,

Ms. Fletcher was setting the agenda, not the discussions for the meeting. CHAIRMAN BRODSKY: MR. MALLOF: Okay.

She was setting the

And in setting the agenda for the

meeting it was very clear that the agenda did not include amendment. Robin asked a couple We

of times and that's all I'm trying to say.

did not actually negotiate and I'm not trying to disclose anything that happened in detail. In addition, before that at the roll call that was held on August 9th I made it very clear that I thought maybe the mediation might be short because it was a binary issue of terminate or not. And Mr.

Kline did not disagree on the record. So, just from the citizens' point of view, when we see the placards go up and when we see the requests for objection, the antenna go up and then we pay a certain level Neal R. Gross & Co., Inc. 202-234-4433

Page 68 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 of attention that's quite significant because really there is fear about this process in many neighborhoods in D.C. When we receive a letter as citizens from officially, in January and February, the legal counsel from Veritas Law Firm for the Licensee, as a matter of good faith on how the Board encourages us to work and conduct ourselves with one another, I think when the official legal counsel writes people who aren't lawyers, who haven't picked up the Voluntary Agreement because Jamie's been doing a pretty good job, and who aren't aware of these statutory provisions, the official legal counsel should say I'm writing because the time's coming when you're required under statute to chat with us. That is not

the tone in any way, shape or form of the communications that the non-lawyer lay citizens received. I think again if we're going to conduct ourselves honestly as a D.C. Neal R. Gross & Co., Inc. 202-234-4433

Page 69 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 neighborhood, when legal counsel writes, he should say I'm writing because the time is coming up and you need to start paying attention. We did not realize that we were And when we did

being summoned into anything.

chat among ourselves, we felt they're not being clear on what they might want to amend, so we really don't see a reason at this time to get together. CHAIRMAN BRODSKY: So, it might

come as no surprise, Mr. Mallof, but Mr. Kline's law firm doesn't represent you guys. MR. MALLOF: I understand. And there's no

CHAIRMAN BRODSKY: requirement for him to -MR. MALLOF:

No, no, I understand. -- write kindly I mean, you

CHAIRMAN BRODSKY:

or make sure you guys understand. guys have the -MR. MALLOF: I think --

CHAIRMAN BRODSKY:

Mr. Mallof, if

you'd like to let me finish, I'd appreciate Neal R. Gross & Co., Inc. 202-234-4433

Page 70 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 that. Thank you. I gave you all the time you

wanted, right?

Okay.

You know, you talk about the fear of a community group. Can you imagine what

the fear would be like, Mr. Mallof, if you put $1 million of your own money on the line to try to open up an ABC licensed establishment in the District of Columbia and you had to face gauntlet of an ANC board who just doesn't really want you and you got your money hanging out there and maybe your family's lives on the line and the people that work for you's lives on the line? So, I think you should be very

careful about using the word "fear," because I think it really exists more on the opposite side of the table. MR. MALLOF: Perhaps. And then the

CHAIRMAN BRODSKY:

other thing is is that as a community group and as the ANC, when you have the power to protest an hold up somebody's business, you have a responsibility to know what's going on Neal R. Gross & Co., Inc. 202-234-4433

Page 71 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Diener? MS. DIENER: Mr. Chairman, as a around you. Right? You can't -- you being

community groups, ANCs and community groups, you can't have it both ways. Right? So, if

you're going to be in the process, you have a responsibility to know the process. MR. MALLOF: I agree. And not rely on

CHAIRMAN BRODSKY:

somebody else's legal counsel to say, hey, heads up, you got this whole thing. That's

not their job, you know what I'm saying? MR. MALLOF: Thank you. Yes, Ms.

CHAIRMAN BRODSKY:

former business owner myself, there's something called market research. And before

you put your million dollars on the line, you acquaint yourself with the circumstances. this is a neighborhood that is under a moratorium on liquor licenses and is furthermore a historic district. lot of complications to deal with. Neal R. Gross & Co., Inc. 202-234-4433 There are a And

Page 72 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 I myself was delayed in opening my business many years ago when we in good faith went ahead and put all the books and bookcases out on the floor. And the government came in

and said you can't do this without having submitted a plan, and we were kept from opening for 30 days. I understand that. It's

very difficult to deal with all the rules and regulations. But; and I was wrong according

to it, this exists for the neighborhood to have the VA as part of what you can expect to go through if you're opening an alcoholserving establishment in Dupont Circle. CHAIRMAN BRODSKY: Ms. Diener, we

may disagree on this, and I have a feeling that I probably disagree with probably everybody except this table right here on this point. MS. DIENER: Oh, no. But the fact of

CHAIRMAN BRODSKY:

the matter is is that from what I understand, right, I'm a 20-plus year guy in the District Neal R. Gross & Co., Inc. 202-234-4433

Page 73 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 of Columbia. year now. Right? I think I'm on my 23rd

Right?

So, as I remember, right,

VAs were used after a Licensee did something wrong. Right? So, back in the day district

agencies maybe weren't doing as good as they could, or maybe the ABRA Board wasn't doing as good as they could; and believe me, I know, because I was in half the bars that probably got in trouble, running around back then when I was in college, but the VA was something that happened after the fact. Right? So, a

Licensee, generally speaking, they did something wrong. research. Right? I mean, we could do the We could pull the first VA,

probably 20-some-odd years ago, and find out how it happened. Right? But it was prescriptive.

It happened after the Licensee was

established, after they were open for business and they'd done done something wrong. community got together and they had a Voluntary Agreement to try to address the problem. Neal R. Gross & Co., Inc. 202-234-4433 So the

Page 74 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 But now what we're seeing on the Board is is that that's not the case, is that Voluntary Agreements are being used by the community groups in the negotiation process before you even get open. So, we have things

as egregious as shutting down somebody's operating hours under the law, less than they're allowed to operate under the law, before they can even open up their doors. They haven't even opened business yet and they're being forced to limit the hours they're open because the Voluntary Agreement; which the word "voluntary" is probably the most misused word in the dictionary in that sentence, doesn't allow them. But that's not

the way the VAs were supposed to work. They're not a prescriptive tool for managing the establishments. They were supposed to be

a tool that was used after an incident happened. So, the whole VA process, I mean, I'm asking the agency now to chart the growth Neal R. Gross & Co., Inc. 202-234-4433

Page 75 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 in VAs. them. It's unbelievable. We have 1,200 of

So, we just fundamentally disagree on This Licensee has an absolute

this point.

right under the law to terminate this Voluntary Agreement. right to do that. Right? They have a

And we just have a

fundamental disagreement about what that tool is used for, I think, and that's going to be part of the challenge. Yes, Mr. Gandhi? MEMBER GANDHI: Thank you. And I

just want to get back to business now, because I did get the attachment that was with your letter on June 28th. And I want to make sure

counsel has the attachment. MR. KLINE: Okay. Okay. And because

MEMBER GANDHI:

what I want to do is in your opening statement you had mentioned that you all didn't have a chance to prepare because you didn't know why they were protesting your termination of the Voluntary Agreement, correct? Neal R. Gross & Co., Inc. 202-234-4433

Page 76 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 it. MEMBER GANDHI: So now we're MR. KLINE: Correct. Okay.

MEMBER GANDHI: MR. KLINE:

And it was not

provided in the copy of the protest letter that was requested from that. MEMBER GANDHI: MR. KLINE: Got it.

And we haven't seen

getting somewhere, you know what I mean, because I do have many documents here and I'd like to talk about them, because I really think this is going to be, at least for me, a deciding point on the motion that they filed, at least as it relates to Mr. Mallof, not as it relates to the Dupont Circle Citizens Association. But on June 28th I see a letter. Do you have a copy of all this, the June 28th letter to Mr. Charles Brodsky, Mr. Fred Moosally and it's signed David Mallof, Alexis Rieffel and three other people? You all have

Neal R. Gross & Co., Inc. 202-234-4433

Page 77 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 letter? that? PARTICIPANT: MEMBER GANDHI: You have that, counsel? MR. KLINE: I have the letter. You have the Yes, sir. Four-page letter?

MEMBER GANDHI: Okay. MR. KLINE:

Correct. And then in the

MEMBER GANDHI:

letter on the first page it says "via email PDF with attachment." MR. KLINE: Do you see that? Yes, I do. Okay. But you're

MEMBER GANDHI:

saying you never got an attachment? MR. KLINE: No. Okay. I was

MEMBER GANDHI:

handed attachments just right now, and I'm reading through it. Do you remember how many

attachments you put in? MR. MALLOF: Well, I mean, it

should have been only what was referenced in the letter. Neal R. Gross & Co., Inc. 202-234-4433

Page 78 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 it? Neal R. Gross & Co., Inc. 202-234-4433 PowerPoint. MEMBER GANDHI: Okay. I did see a

On the June 28th letter it

basically mentions the PowerPoint comments in No. 2 on the third page, correct? MR. MALLOF: Yes, sir. We

attempted to address chapter and verse of the petition as citizens. We read requests for We responded

objections, we got a petition. to the petition. MEMBER GANDHI:

Mr. Kline, let me

show you the document that I have, that I was handed by the general counsel. MR. KLINE: Sure. And tell me if

MEMBER GANDHI: you've ever seen it.

I can probably tell the

answer already, but let me just show it to you anyway. This is the PowerPoint and it was

attached, it was definitely attached to people at ABRA. MR. KLINE: Yes, I've seen it. Okay. You've seen

MEMBER GANDHI:

Page 79 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 you seen it? MR. KLINE: I think it was MR. KLINE: Correct. Okay. Where have

MEMBER GANDHI:

attached to the original June 7th letter. That's where I've seen it. MEMBER GANDHI: the June 7th letter? MR. KLINE: Yes, that's where I Okay. It was in

have it, is attached to the June 7th letter. MEMBER GANDHI: MR. KLINE: Okay.

But be that -- you go It's your

and then tell me when I can talk. turn. MEMBER GANDHI: Okay.

So, to

entertain it at least, tell me how you don't believe that this PowerPoint addresses the appropriateness standard? MR. KLINE: All right. Regardless

of what's in the PowerPoint, the letter, which is the Letter of Objection, is what it's labeled -Neal R. Gross & Co., Inc. 202-234-4433

Page 80 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 MEMBER GANDHI: MR. KLINE: Right.

-- it doesn't say,

gee, attached in the PowerPoint is the reasons that we protest this license on the grounds of appropriateness. What it says is, "Please see

the attached detailed PowerPoint comments regarding the weak and untrue statements in the petition." Nowhere does that meet the

requirements of the regulations which require that in order for a valid protest to be filed that the Protestants articulate one or more of the appropriateness criteria. So, even though

the attachment may talk about those things, I don't think one can read that June 28th letter and say, well, gee, they're protesting on the grounds of peace, order and quiet, they're protesting on the grounds of adverse impact on real property values. The incorporation of

the PowerPoint, it's not incorporated for that purpose. If it were, then yes, I would say But here where it

that might make some sense.

says, gee, see the attached where everything's Neal R. Gross & Co., Inc. 202-234-4433

Page 81 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 crux of it. untrue, it doesn't seem to me that that, at least in my mind, goes far enough to articulate an opposition to the termination request based upon one of the appropriateness standards. MEMBER GANDHI: Got it. So if you

said in the letter, if it explicitly said the PowerPoint is the reason for the basis that we are protesting the termination, then you'd be okay with it because you feel that it's appropriate. But because there is different

language there, you don't believe that it satisfies the code? MR. KLINE: I'm not sure without

looking at it in more detail that it even would satisfy the code. MEMBER GANDHI: For me it is. MR. KLINE: incorporated -MEMBER GANDHI: MR. KLINE: Right. If it were properly Well, that's the

-- because, for

Neal R. Gross & Co., Inc. 202-234-4433

Page 82 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 PowerPoint. example, I'm looking at -- I mean this is a March 14th, 2005 letter that's incorporated. So, I don't know how we can say -MEMBER GANDHI: says June 28th. The PowerPoint

The first page. I'm looking at all the

MR. KLINE:

attachments that I've been handed. MEMBER GANDHI: MR. KLINE: Yes, the first --

One is the letter. I'm looking at the

MEMBER GANDHI: That's all. MR. KLINE:

Okay. Because I did look

MEMBER GANDHI:

through everything else, but the PowerPoint was the most interesting thing to me. MR. KLINE: Okay. That's fine.

MEMBER GANDHI: on the PowerPoint. MR. KLINE:

It says June 28th

It says Dupont has a

disproportionate number of the best restaurants in the entire D.C. Metro area. That's true. Neal R. Gross & Co., Inc. 202-234-4433

Page 83 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 interest. MEMBER GANDHI: And really Nos. 7

and 8 sort of talk about it, but they also talk about Lauriol Plaza and 18th and T more than anything else. MR. KLINE: Yes, they have no I

Lauriol Plaza, Lauriol Plaza.

dropped a neutron bomb of Lauriol Plaza in Adams Morgan. I mean, just none of that seems Over-

relevant to specifically this location.

concentration is not an issue with respect to a renewal or a VA termination request. MEMBER GANDHI: I guess really No.

8 where it talks about -- granted that it's really comparing it, I think with Lauriol Plaza. At least that the gist I got. And

then it talks about peace, order and quiet and it also talks about properties nearby remain standing, but the impacts have been severe adverse and to the clear detrimental quality of life, peace, order and quiet and property values. Now, one can say of that -MR. KLINE: I'm sorry, where are

Neal R. Gross & Co., Inc. 202-234-4433

Page 84 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 and 8. MR. KLINE: Slides 7 and 8? Yes. But my you reading? MEMBER GANDHI: Really slides 7

MEMBER GANDHI:

question is, you know, after you read a PowerPoint like this -- I'm not saying you did, because it wasn't attached or whatever the case may be, but if you were to read something like this, would you get a sense of the reason that they're opposing your termination? That's where you started off. Now, look this may be a clear miscommunication where you sent an email, it went to certain parties, it didn't go to everyone else. I can understand that. I

don't know if that's what happened or not, but I need to figure that out. MR. KLINE: Well, a couple points.

I mean, one is obviously if the protest letter, which is the June 28th letter, explicitly said the reasons for our protest Neal R. Gross & Co., Inc. 202-234-4433

Page 85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 are outlined in the attachments, then that might be a different situation. MEMBER GANDHI: But --

So, it says No. 2,

the reasons to terminate offered in paragraphs 7, 8 and 9 of the petition are both untrue on their face and also support arguments beyond the scope of the in-force agreement for the record in this matter. Please see the

attached detail PowerPoint comments regarding the weak and untrue statements of the petition. MR. KLINE: Right. These require no

MEMBER GANDHI: further comment here. MR. KLINE:

But they do require

further comment, because in order -- under the regulations in order to articulate a bona fide protest the rules require that they be -- the magic words have to be there. We protest on We

the grounds of peace, order and quiet.

protest on the ground of adverse impact on real property values. Neal R. Gross & Co., Inc. 202-234-4433

Page 86 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 just -MEMBER GANDHI: understanding it -MR. KLINE: -- bootstrapping and As I'm MEMBER GANDHI: MR. KLINE: Okay.

Otherwise, we're

we're saying, oh, well, there's a bunch of stuff attached and there are some issues raised. That doesn't communicate the basis I mean, it's -All right. Mr.

for a protest.

CHAIRMAN BRODSKY:

Mallof, you're saying it does communicate? MR. MALLOF: Well, sir, in every

legal document I've ever signed the exhibits are an integral part of the document, end of discussion. We attempted as lay people to respond to -- once we saw the formal request for an objection, we attempted to respond to the three things, (A), (B), (C) in this section of the statute that's been talked about. Specifically, (C) talks about won't Neal R. Gross & Co., Inc. 202-234-4433

Page 87 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 have an adverse impact. And we laid out here

chapter and verse as an integral part of the letter, especially in slide No. 8, our fears that breaking the Voluntary Agreement would result in Lauriol-like conditions that have decreased property values as we believe them. And I did use the magic POQ on slide 8, along with I think we even talked about vehicular and pedestrian safety. did the acid test. So, we

With our understanding

also that as signatories to the agreement, where this had already been visited and we felt the agreement itself represents a settled condition, that in breaking it we didn't have to go back to that in the first place. do go back to it and we tried to respond directly to Mr. Kline's petition specifically. And I think we matched it up pretty well with the PowerPoints and his petition. know what more to do. MR. KLINE: If I may, two points. So, I don't But we

Yes, exhibits are deemed incorporated into the Neal R. Gross & Co., Inc. 202-234-4433

Page 88 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 document for the purpose for which they're referenced in the document. one. Number two, let's look at this. "Property values and peace, order and quiet, quality of life within 300 feet of Lauriol Plaza have been severely and negatively impacted and residents there who remain can verify the overall quality of daily life has declined for the most proximally affected. Of That's number

course if you're visiting from out of town and staying at the nearby Hilton, it's all swell." What does this have to do with Hank's Oyster Bar? Plaza. "Counsel to Hank's was directly responsible for dropping the oversized out-ofscale Lauriol-like kind of neutron bomb on proximally impacted residents on the corner of 18th and T." Again, 18th and T. What does It's talking about Lauriol

this have to do with the 1600 block of Q Street? Neal R. Gross & Co., Inc. 202-234-4433

Page 89 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 much. "The properties nearby remain standing today, but the impacts have been severe, adverse and to the clear detriment of quality of life." 18th and T. Again, we're talking about

We're not talking about the 1600

block of Q Street. "The moratorium exists to protect the diversity of businesses, not to squeeze out more non-ANC merchants. The Board has no

authority to continue to over-concentrate." I don't see anything in slide 8; if that's what we're going to rely on, that says we oppose Hank's Oyster Bar because of peace, order and quiet. Now, if this were

attached to a protest against Lauriol Plaza, yes, absolutely. this application? CHAIRMAN BRODSKY: figure that out. All right. Thank you all very Trying to What does it have to do with

We're going to take this under We'll be right back. Neal R. Gross & Co., Inc. 202-234-4433

advisement.

Page 90 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 here. Chair. CHAIRMAN BRODSKY: MEMBER BROOKS: Mr. Brooks? (Whereupon, at 2:21 p.m. off the record until 3:08 p.m.) CHAIRMAN BRODSKY: We're back on the record. With respect to the two motions that we have in front of us, it is my first recommendation to the Board that we dismiss the Dupont Circle Citizens Association from the protest hearing. How say you, Mr. Alberti? MEMBER ALBERTI: I agree, Mr. All right.

I agree. Mr. Gandhi?

CHAIRMAN BRODSKY: MEMBER GANDHI:

I agree. Mr. Jones?

CHAIRMAN BRODSKY: MEMBER JONES: MEMBER GANDHI:

I agree. Mr. Nophlin's not That's

And I, Charles Brodsky, agree.

five in favor, none opposed. is passed.

So, that motion

Neal R. Gross & Co., Inc. 202-234-4433

Page 91 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Mr. Jones? MEMBER JONES: I agree and as a Mr. Brooks? MEMBER BROOKS: I disagree. How say you, Chairman. CHAIRMAN BRODSKY: How say you, Mr. Alberti? MEMBER ALBERTI: I disagree, Mr. It is my second recommendation to the Board that we dismiss the Group of Five from the protest hearing. How say you, Mr. Nophlin? MEMBER NOPHLIN: CHAIRMAN BRODSKY: I agree. How say you,

CHAIRMAN BRODSKY:

reason for my agreement I want to reference 23 DCMR 1605.2, which states that all protests shall be in writing, shall be received by the Board prior to the end of the protest period and shall state as grounds for the protest why the matter being objected to is inappropriate under one or more of the appropriateness Neal R. Gross & Co., Inc. 202-234-4433

Page 92 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Chairman. Neal R. Gross & Co., Inc. 202-234-4433 standards set out in D.C. Official Code 25-313 and 25-314 and 400 of this title. And I do

not feel as though that burden was met. CHAIRMAN BRODSKY: Mr. Gandhi? MEMBER GANDHI: Mr. Chair, I will Thank you.

tell you that I do not agree with your motion, primarily because I believe Mr. Mallof's letter and attachments did include all the relevant information. not agree. CHAIRMAN BRODSKY: Brodsky, agree. three opposed. And I, Charles And so therefore I do

So, that's three in favor, So, the Group of Five will not

be dismissed from the protest. And then on the second motion, I recommend to the Board that we deny the Group of Five's Motion to Dismiss the Petition to Terminate the Voluntary Agreement. How say you, Mr. Nophlin? MEMBER NOPHLIN: Agree, Mr.

Page 93 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 being here. Mr. Kline, how many witnesses will you present today? MR. KLINE: Three. Mr. Hibey, now CHAIRMAN BRODSKY: MEMBER BROOKS: Mr. Brooks?

Agree. Mr. Gandhi?

CHAIRMAN BRODSKY: MEMBER GANDHI:

I agree. Mr. Jones?

CHAIRMAN BRODSKY: MEMBER JONES:

I agree. And I, Charles

CHAIRMAN BRODSKY: Brodsky, agree. opposed.

That's all in favor, none

We're going to proceed forward with the protest hearing now with the Group of Five being seated as the only Protestant group. Ms. Diener, thank you so much for

CHAIRMAN BRODSKY: many witnesses? MR. HIBEY: three remaining.

I think I only have

We had more earlier, but --

Neal R. Gross & Co., Inc. 202-234-4433

Page 94 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 can try? MR. KLINE: Is it the Board's witnesses? MR. HIBEY: PARTICIPANT: MR. HIBEY: I have four witnesses? Yes. I have four witnesses. We assume CHAIRMAN BRODSKY: Three

CHAIRMAN BRODSKY:

they'll all be testifying as to something different, not duplicative? MR. HIBEY: Yes. Where's our

CHAIRMAN BRODSKY: good investigator today? audience? There we go. MR. KLINE:

Somewhere in the

Mr. Chairman, before

we proceed may I get one issue clarified? CHAIRMAN BRODSKY: Yes, sir, you

position that the Licensee must prove 25446(A), (B) and (C), or merely (C)? CHAIRMAN BRODSKY: Mr. Kline? MR. KLINE: Yes, sir? One moment.

Neal R. Gross & Co., Inc. 202-234-4433

Page 95 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 may. CHAIRMAN BRODSKY: MR. KLINE: Okay. Just (C). Thank you. You're welcome.

CHAIRMAN BRODSKY: That's 25-446(C), right? MR. KLINE:

25-446(d)(4)(C). (C). Yes,

CHAIRMAN BRODSKY: there you go. Thank you.

MR. HIBEY:

Can I state on the

record my objection to that? CHAIRMAN BRODSKY: Yes, sir, you

I'm sure that's not the first objection

I'll hear through the process. MR. HIBEY: I just want to say

that the statute requires the Licensee to prove 25-446(d)(4)(A), (B) and (C). CHAIRMAN BRODSKY: So duly noted. All right. the rule on witnesses? MR. KLINE: Yes. Mr. Hibey? Mr. Kline, you waive Thank you, sir.

CHAIRMAN BRODSKY: MR. HIBEY: Yes.

Neal R. Gross & Co., Inc. 202-234-4433

Page 96 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 sorry. time. MR. KLINE: the investigator first. CHAIRMAN BRODSKY: Oh, I'm so Yes, we'd be calling much. CHAIRMAN BRODSKY: Thank you very

Mr. Kline, your first witness? There's an hour-and-a-half total

Mr. Investigator, you're standing I should just look up every once You're kind of hard to miss. Raise your right hand. Do you

right there. in a while.

affirm that the testimony you give is the truth, the whole truth, nothing but the truth? INVESTIGATOR BAILEY: CHAIRMAN BRODSKY: I do.

Thank you, sir.

Mr. Investigator, where are you employed and your name, please, if you would? INVESTIGATOR BAILEY: Investigator David Bailey. My name is

I'm employee with

the Alcohol Beverage Regulation Administration for about four years now. CHAIRMAN BRODSKY: Thank you, Mr.

Neal R. Gross & Co., Inc. 202-234-4433

Page 97 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Bailey. Would you like to give us your

thoughts here on this matter? INVESTIGATOR BAILEY: Well, I was

assigned the protest regarding the termination of a Voluntary Agreement for Hank's Oyster Bar located at 1624 Q Street, Northwest. Originally there were two Protestants in this case, but now I'm informed that there is only one, which I spoke to on Tuesday, September 21st. I conducted a He

telephone interview with Alexis Rieffel. represented the Group of Five.

Mr. Rieffel stated the following issues regarding his protest. He said the

establishment has not presented a reasonable argument as to why the VA should be terminated. He stated that the VA was put in

place so that the residents can maintain some order and the establishment now wants to expand its business and this expansion will affect the property values in the area. There are approximately 22 ABC Neal R. Gross & Co., Inc. 202-234-4433

Page 98 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 licensed establishments in the close proximity to Hank's Oyster Bar, one that holds a class B license, one that holds a class CX, two that hold a class CH, two that hold a class A, two that hold a class CT, two that hold a class DR license and the remaining 12 hold a class CR license. You will also see attached as exhibits are the maps and layouts for the establishment that were done using the District of Columbia Geographic Information System. One map shows that there are no

schools, recreations centers, public libraries or day cares within 400 feet of Hank's Oyster Bar, but there is a Stead Recreation Center that's located approximately 281 feet from Hank's Oyster Bar. The other map of course

shows the 22 other ABC licensed establishments within 1,200 feet of Hank's Oyster Bar. The parking area is as follows surrounding Hank's Oyster Bar. Both in the

1600 block and the 1700 block of Q Street Neal R. Gross & Co., Inc. 202-234-4433

Page 99 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 there is two-hour parking Monday through Friday from 7:00 a.m. to 8:30. It's limited

to zone 2 on both the north and south sides. There is one-hour parking also in the 1600 block of Q Street. In the 1500 block of 17th

Street, there is one-hour parking Monday through Friday between 7:30 to 6:30 p.m. Okay. There's also a parking garage located

at 1616 P Street that has about 200 spaces and the garage is open until 11:00 p.m. on Sunday through Thursday and open until 12:00 a.m. on Fridays and Saturdays. This garage is located

also directly across the street from the recreation center, which is approximately 281 feet from the establishment. Of course Hank's Oyster Bar is located on the 1600 block of Q Street and right next door to the establishment is an existing ABC establishment and also directly across the street is another ABC establishment, as well as across the street there is also an office and apartments. Neal R. Gross & Co., Inc. 202-234-4433 And

Page 100 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 also located in the 1600 block are residential houses. Hank's Oyster Bar is basically a one-story building which contains a kitchen, two bathrooms, one bar area and a few seats inside as well as they also have a sidewalk caf‚ that also has a few seats on the outside as well. I conducted an interview with Jamie Leeds, the owner of Hank's Oyster Bar. She stated that she was aware of the protest issue. She has been in business for five

years and has not had any major violations. Ms. Leeds also stated that she felt forced to sign the Voluntary Agreement in order to open up the business. Ms. Leeds further stated

that she only wants to grow her business and is willing to work with the community. The establishment was visited by ABRA investigators for a total of 29 separate occasions from August 24th, 2010 until October 5th, 2010. During these visits ABRA reported Neal R. Gross & Co., Inc. 202-234-4433

Page 101 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 no trash or noise, but did observe that there was no parking available on Q Street, but there was some parking available on 17th Street. We also pulled the Metropolitan Police Department Crime Analysis and Intelligence Bureau records, which show that two calls for service were made to the address for Hank's Oyster Bar, none of them resulting in an ABRA report. That concludes my findings, sir. CHAIRMAN BRODSKY: Thank you, sir. Any

Any questions from the Board? Board Members questions? (No audible response.) CHAIRMAN BRODSKY: questions for the investigator? MR. KLINE: Investigator Bailey. Yes.

Mr. Kline, any

Good afternoon,

You testified about a

parking lot in the 1500 block of 16th Street, correct? INVESTIGATOR BAILEY: A parking

Neal R. Gross & Co., Inc. 202-234-4433

Page 102 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 you. Street? lot in the 1600 block of P Street. MR. KLINE: Okay. INVESTIGATOR BAILEY: block of P Street. MR. KLINE: Okay. Page 3 of your The 1600 The 1500 block of P

report, if you could refer to that, and we'll make sure that we have the -- oh, I'm sorry. 1616 P Street is what we're talking about? INVESTIGATOR BAILEY: where the parking garage is. MR. KLINE: Okay. When you Yes, that's

visited that parking lot, were there spaces available, do you know? INVESTIGATOR BAILEY: Yes, at the

time that I went there were spaces available. People were leaving that parking lot, as well as some people coming in. MR. KLINE: Okay. Great. Thank

I have no further questions. CHAIRMAN BRODSKY: MR. HIBEY: Mr. Hibey? When

Good afternoon.

Neal R. Gross & Co., Inc. 202-234-4433

Page 103 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 you visited the Licensee did you ever visit or investigate the premises after it was closed? INVESTIGATOR BAILEY: Yes, during

the time -- yes, some of the times that we monitored the establishment was closed during those times as well. MR. HIBEY: Okay. And would those

have been recorded on your report? INVESTIGATOR BAILEY: Well, you

can also tell by the times that they were there. It doesn't state whether they were

closed or not, but of course you can see that according to the operation hours and according to the time that some of those visits were made that the establishment was not in business during that time. MR. HIBEY: Okay. Could you look

at page 5 of your report? INVESTIGATOR BAILEY: MR. HIBEY: Okay.

The third, fourth,

fifth ones down all say Friday, August 27th. INVESTIGATOR BAILEY: Okay.

Neal R. Gross & Co., Inc. 202-234-4433

Page 104 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 that? INVESTIGATOR BAILEY: have the exhibit here that I made. MR. HIBEY: So, the third one you Yes, I do 12:35 a.m. a.m. MR. HIBEY: Do you know what time

you visited on those days? INVESTIGATOR BAILEY: It says

This should have been to 12:50 Then

And then 1:05 a.m. to 1:20 a.m.

1:00 p.m. to 1:21 p.m. MR. HIBEY: Are you sure about

visited earlier than the first two on that day, right? Is that what you're saying now? INVESTIGATOR BAILEY: The third

would have been in the afternoon from 1:00 p.m. until 1:21 p.m. MR. HIBEY: Okay. The other

INVESTIGATOR BAILEY:

two were in the early parts of the morning, the late hours of Thursday night to Friday morning. MR. HIBEY: You didn't visit the

Neal R. Gross & Co., Inc. 202-234-4433

Page 105 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 premises of the Licensee when it was open after -- I don't want to say open at 2:00 a.m. on a Friday, did you? INVESTIGATOR BAILEY: a Friday, not to my knowledge. not just done by myself. 2:00 a.m. on All these were

They were also done So none of them

by other ABRA investigators.

report that the establishment was still open during the time they weren't supposed to be. MR. HIBEY: Your report also

discusses characteristics of the neighborhood. It's the bottom of page 1 and it goes onto page I guess 2 and 3. Section 2,

characteristics of the neighborhood. INVESTIGATOR BAILEY: MR. HIBEY: an ABRA investigator? INVESTIGATOR BAILEY: Approximately four years, sir. the end of this month. MR. HIBEY: Okay. Do you know Four years at Okay.

How long have you been

whether any of these 22 ABC licensed Neal R. Gross & Co., Inc. 202-234-4433

Page 106 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 establishments that you listed on your report were open in 2005? INVESTIGATOR BAILEY: testify to that, sir. MR. HIBEY: Okay. There were The trade I cannot

INVESTIGATOR BAILEY: ABC establishments over there. names have changed. changed. MR. HIBEY:

The ownerships have

Have you seen the

Voluntary Agreement between the Licensee and our group? INVESTIGATOR BAILEY: MR. HIBEY: You have? Yes. Yes, I have.

INVESTIGATOR BAILEY: MR. HIBEY:

And where did you see

that, or why did you see that? INVESTIGATOR BAILEY: It's just

routinely pulled for the protest case just to review what it said. exhibits for my case. MR. HIBEY: Okay. I don't have It's also part of my

Neal R. Gross & Co., Inc. 202-234-4433

Page 107 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 times? INVESTIGATOR BAILEY: CHAIRMAN BRODSKY: Yes, sir. any other questions. CHAIRMAN BRODSKY: questions from the Board? (No audible response.) CHAIRMAN BRODSKY: question, Mr. Investigator. I did have one In your research Any other

how many times did you visit this establishment? INVESTIGATOR BAILEY: I believe, sir. CHAIRMAN BRODSKY: Twenty-nine Twenty-nine,

I noticed in

the Voluntary Agreement that is currently in place with the Oyster Bar that it limits in particular their hours of sales of alcoholic beverages on Friday and Saturday to 1:00 a.m. And I noticed that right next -- forgive me if it's not actually right next door, but I think Trio's is pretty close to it, right? INVESTIGATOR BAILEY: Right, it is

Neal R. Gross & Co., Inc. 202-234-4433

Page 108 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 right next door. CHAIRMAN BRODSKY: much next door? Is it pretty

And then Agora, which is also So, those

I think pretty close to next door.

folks are currently serving and selling alcohol until 2:00 a.m. and 3:00 a.m. Saturday and Sunday, respectively. Did you happen to

notice any reason why, other than it's in the Voluntary Agreement -- was there a specific reason that you could see why they wouldn't be selling the same service and hours that Hank's Oyster Bar? something? INVESTIGATOR BAILEY: Other than Is there some safety reason or

what's written in the Voluntary Agreement is the only thing I can tell you why they wouldn't be open during that time. CHAIRMAN BRODSKY: And did you

talk to or investigate the economic impact to Hank's Oyster Bar of being closed four or five hours earlier each week than anybody else next to them? Neal R. Gross & Co., Inc. 202-234-4433

Page 109 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 the Board? curious. Okay. Any other questions from You all good? Mr. Chairman, jus INVESTIGATOR BAILEY: just one more time. CHAIRMAN BRODSKY: Did you do any Say that

investigation into the economic impact on Hank's Oyster Bar by being closed four or five hours earlier than everybody else around them in a given week? INVESTIGATOR BAILEY: CHAIRMAN BRODSKY: No, sir.

Okay. No, sir.

INVESTIGATOR BAILEY: CHAIRMAN BRODSKY:

I was just

Mr. Jones?

MEMBER ALBERTI: ton that line.

In comparison to the size of

the establishments that the Chairman just referenced, how large is Hank's Oyster Bar? Is it smaller? Is it larger? Than the

INVESTIGATOR BAILEY: other establishments which he -MEMBER ALBERTI: Yes.

Neal R. Gross & Co., Inc. 202-234-4433

Page 110 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 correct. CHAIRMAN BRODSKY: Okay. All right. INVESTIGATOR BAILEY: It's smaller

than the other establishments that he made reference to. MEMBER ALBERTI: CHAIRMAN BRODSKY: Okay. Thank you.

So, they have

larger establishments that are open later? INVESTIGATOR BAILEY: That's

INVESTIGATOR BAILEY:

Well, thank you very much, Mr. Investigator. We appreciate your time and your work. a great job. INVESTIGATOR BAILEY: CHAIRMAN BRODSKY: Yes, sir. You do

I'm assuming I'm

Mr. Hibey, you have no more questions. sorry. I should have let you -MR. HIBEY: Thank you.

CHAIRMAN BRODSKY:

You're welcome.

Mr. Kline, you want to make an opening statement? Or I'm sorry, you want to

call your first witness? Neal R. Gross & Co., Inc. 202-234-4433

Page 111 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 MR. KLINE: opening statement. I'd love to make an

I will be brief. I'm sorry. I

CHAIRMAN BRODSKY:

actually didn't give you guys a chance to do that. I apologize. I went right to bringing You can make a brief

our investigator up. opening statement.

Mr. Hibey, you'll be next. MR. KLINE: Yes, thank you. Good

afternoon, Members of the Board. We're very happy to be here today. I know that Jamie Leeds is very happy to be here today. And the reason that she's happy

to be here today is because today she gets what she couldn't get five years ago, which is a hearing. This application was filed. was a roll call hearing. There

We came in before This

the Board and we said we need a hearing. isn't going to get resolved. And the then

members of the ABC Board said, well, go try to work it out. I'm sure you can. You can work

Neal R. Gross & Co., Inc. 202-234-4433

Page 112 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 it out. This was not going to get worked out.

We need a hearing. The plan in those days was that we would be sent away to try to enter into a Voluntary Agreement. If we couldn't enter We'd have a status.

into one, we'd come back.

Perhaps, hopefully at that point, the Board would then schedule it for mediation and it would go on and on and on until at some point a hearing was supposed to be scheduled. Now, I can tell you from my knowledge there was a period of five years where I didn't have any protest hearings before this Board. I can't speak for the But as a result of

experiences of others.

that Ms. Leeds, given the financial constraints, had to enter into a Voluntary Agreement. She really didn't have any choice

if she was going to get this restaurant opened. The testimony that you will hear from Ms. Leeds and the other two witnesses she Neal R. Gross & Co., Inc. 202-234-4433

Page 113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Kline. Mr. Hibey? MR. HIBEY: I think everyone has here today will demonstrate that whatever fears there were on the part of neighborhood residents concerning the opening of Hank's Oyster Bar were completely unfounded, that this establishment is a restaurant. operates as a restaurant. It

It operates without It's well

negative impact on the community. liked in the community. the community.

It's an amenity for

And there just simply is no

need for this Voluntary Agreement that Ms. Leeds was forced to sign five years ago. And

that's why we've come before you and requested that the Voluntary Agreement be terminated. Thank you. CHAIRMAN BRODSKY: Thank you, Mr.

agrees that it's a well-liked restaurant, but that's not a basis to terminate a Voluntary Agreement. I believe the Board's already Neal R. Gross & Co., Inc. 202-234-4433

Page 114 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 decided that we're only going to look at part (C) of Section (4) of the statute, so I won't go in too much on the other parts. But to

terminate a Voluntary Agreement the Board must make three findings; and I guess now we're only going to make one, but the one finding that needs to be made is that the termination of the Voluntary Agreement won't have an adverse impact on the neighborhood. And we

think it will, and that's why we entered into a Voluntary Agreement. The Voluntary

Agreement provides us, the neighborhood, over 20 protections against what could happen at a restaurant. And because of the Voluntary

Agreement, the Licensee has not had an adverse impact. But it's because of that Voluntary

Agreement being in place. So, we're going to go forward on that basis, that the termination of the Voluntary Agreement will -- you will be able to find it will not have an adverse impact. I guess I'd like to speak more on Neal R. Gross & Co., Inc. 202-234-4433

Page 115 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 much. Neal R. Gross & Co., Inc. 202-234-4433 there. the other points just briefly to make the record clear. CHAIRMAN BRODSKY: Well, if it's

not related to the one specific thing we talked about, I'll expect you to stay focused on that one particular instance. And I'm sure

you guys are going to appeal it, so if you want to talk to the court of appeals, they'll have an open ear. MR. HIBEY: Okay. I just -You know, I'd

CHAIRMAN BRODSKY: appreciate that.

Let's try to keep it. -- wanted to be clear

MR. HIBEY:

So, our position is that the

restaurant is well liked, but we need a Voluntary Agreement. It's in place and it can

only be terminated a certain way, not just because you didn't get a hearing five years ago, and the termination will have an adverse impact on the neighborhood. CHAIRMAN BRODSKY: Thank you very

Page 116 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 right hand. Mr. Kline, first witness? MR. KLINE: stand Mikala Brennan. CHAIRMAN BRODSKY: MS. BRENNAN: Hello. Yes, I'll call to the

Hello. All right.

CHAIRMAN BRODSKY:

Could you just stay standing for one second? MS. BRENNAN: Okay. Raise your

CHAIRMAN BRODSKY:

Do you affirm the testimony you

give is the truth, the whole truth, nothing but the truth? MS. BRENNAN: Yes, sir. Thank you.

CHAIRMAN BRODSKY:

Your witness, Mr. Kline. MR. KLINE: Yes. Would you state

your name and address for the record, please? MS. BRENNAN: Mikala Brennan.

It's spelled M-I-K-A-L-A, last name Brennan, B-R-E-N-N-A-N, 1747 Church Street. MR. KLINE: Where is your

residence in relation to Hank's Oyster Bar? Neal R. Gross & Co., Inc. 202-234-4433

Page 117 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 restaurant. neighborhood. a month. MR. KLINE: about the establishment. establishment is it? MS. BRENNAN: Contemporary Okay. Tell the Board times? MS. BRENNAN: a-half blocks. MR. KLINE: Okay. And how long It's about one-and-

have you resided at that address? MS. BRENNAN: MR. KLINE: Eleven years. And when did you first

become familiar with Hank's Oyster Bar? MS. BRENNAN: basically five years ago. MR. KLINE: establishment? MS. BRENNAN: MR. KLINE: Any idea? MS. BRENNAN: We go normally twice Absolutely. Approximately how many Have you been in the When it opened in --

What kind of

Very welcome into the We didn't have very much via Neal R. Gross & Co., Inc. 202-234-4433

Page 118 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 well know. 17th Street. It's been great having it there.

It's increased my property value quite a bit. We're very happy that Hank's has been in the neighborhood. MR. KLINE: In terms of the

establishment is it known in the neighborhood as a bar, as a restaurant? MS. BRENNAN: MR. KLINE: As a restaurant. All right. And is

there any specific feature about the business that makes it known as a restaurant in your neighborhood? MS. BRENNAN: MR. KLINE: the operator? Quality food. Okay. And what about

Does that have anything -Operator is very

MS. BRENNAN:

We've known her since previous

restaurants and she's extremely well-regarded in the community. MR. KLINE: Now, you indicated Do you own

something about property values. where you live?

Neal R. Gross & Co., Inc. 202-234-4433

Page 119 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 MS. BRENNAN: MR. KLINE: Yes, I do. All right. And given

your just knowledge of the neighborhood, do you have knowledge of what property values have done in that neighborhood in the last five years? MS. BRENNAN: have quadrupled. MR. KLINE: MS. BRENNAN: Okay. And I think it's I know that mine

very directly related to the development of businesses on our 17th Street area. MR. KLINE: MS. BRENNAN: And why is that? Because prior to my

moving there 11 years ago, there wasn't much on that block and so my property value, I got a deal, quite frankly. going on. There wasn't much

I bought in the neighborhood and it

was actually considered not to be a super safe neighborhood when I moved. The businesses

that have come in and done their openings and done will with the community, I think it has Neal R. Gross & Co., Inc. 202-234-4433

Page 120 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 that? MS. BRENNAN: Because there's more increased our property values. MR. KLINE: Now you're living

around the corner, obviously familiar with the 1600 block of Q Street where this establishment is located having visited the establishment. MS. BRENNAN: MR. KLINE: Absolutely. Have you had any

experience whether the presence of that business on that block has had any effect on safety on that block? MS. BRENNAN: neighborhood more safe. MR. KLINE: Okay. And why is I think it makes our

affluent I guess people coming into the neighborhood to eat and drink and spend money. We don't have as many kind of hole-in-the-wall dive joints that are bringing in an element that we don't necessarily need. MR. KLINE: Okay. Now, in terms

Neal R. Gross & Co., Inc. 202-234-4433

Page 121 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 of the way the establishment has been run, have you seen any impact on peace, order and quiet in your neighborhood from the establishment? MS. BRENNAN: No, not in general.

I do know that they have a -- you know, the VA and I know that they close their establishment at a certain point. I've never had any noise

issues when we've walked past their -- when they're closed. I'm familiar with some of the

other restaurants on 17th Street that do provide a lot of noise. MR. KLINE: Okay. Now what about

during the times the establishment is open? Are there any noise issues then? MS. BRENNAN: MR. KLINE: No, sir. In terms of the crowd,

does it attract a crowd that's disorderly or disruptive -MS. BRENNAN: MR. KLINE: neighborhood? No, sir. -- in the

Let me finish my question -Neal R. Gross & Co., Inc. 202-234-4433

Page 122 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 yes. MR. KLINE: Does this MS. BRENNAN: MR. KLINE: Sorry. -- before you answer

or this gentleman over here will have a hard time. Does the restaurant attract a crowd that's disruptive to the neighborhood in any way? MS. BRENNAN: MR. KLINE: No, sir. Parking is a problem

in the neighborhood, is that correct? MS. BRENNAN: I think in general,

establishment create undue demand for parking in the neighborhood in your experience? MS. BRENNAN: experience, no. MR. KLINE: Okay. Do you have any Not in my

knowledge as to whether this establishment has any effect on pedestrian safety in the neighborhood? MS. BRENNAN: No, I do not.

Neal R. Gross & Co., Inc. 202-234-4433

Page 123 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Chairman. Thank you for your time and thank you for staying here. You had mentioned that questions. CHAIRMAN BRODSKY: Yes, sir, Mr. Gandhi? MEMBER GANDHI: Thank you, Mr. From the Board? no, sir. MR. HIBEY: I don't have any more MR. KLINE: Okay. That's all I Thank you.

have of this witness at this time. CHAIRMAN BRODSKY: MR. HIBEY:

Mr. Hibey?

Thank you.

Good afternoon. MS. BRENNAN: MR. HIBEY: Hello. Have you read the

Voluntary Agreement between the parties? MS. BRENNAN: MR. HIBEY: No, sir.

So you don't know

what's in the Voluntary Agreement? MS. BRENNAN: Not the specifics,

there are no noise issues when they're closed, Neal R. Gross & Co., Inc. 202-234-4433

Page 124 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 them. MS. BRENNAN: Those ones that are correct? MS. BRENNAN: hours, no, there is no -MEMBER GANDHI: hours for Hank's? MS. BRENNAN: MEMBER GANDHI: Yes. Okay. But how During operating During operating

about the other establishments that you talked about? You said know of other establishments

that are loud. MS. BRENNAN: MEMBER GANDHI: Correct. Tell me about

open until 3:00 in the morning, then there's an outflow of people, but that's normally at the bar that's located right where I live. MEMBER GANDHI: Okay. So, are you

against establishments that are open pretty late at night? MS. BRENNAN: MEMBER GANDHI: No, sir. So, you support

Neal R. Gross & Co., Inc. 202-234-4433

Page 125 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Mr. Alberti? MEMBER ALBERTI: Yes, Ms. Brennan, you? MS. BRENNAN: MEMBER GANDHI: No. Great. And this establishments that are open until 3:00 in the morning, until full legal hours in your neighborhood? MS. BRENNAN: impact my living. MEMBER GANDHI: They don't impact Yes, sir, they don't

hearing today is about termination of a Voluntary Agreement, but you've never read the Voluntary Agreement, correct? MS. BRENNAN: MEMBER GANDHI: have no further questions. CHAIRMAN BRODSKY: Board Members? No, sir. Okay. Great. I

have you ever been by or been in Hank's Oyster Bar late, at say 11:00, 12:00 at night? MS. BRENNAN: Yes, sir. Can you describe

MEMBER ALBERTI:

Neal R. Gross & Co., Inc. 202-234-4433

Page 126 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 frankly. MEMBER ALBERTI: Is it just -MS. BRENNAN: People are having a It's Okay. How so? to me what the atmosphere is like there? MS. BRENNAN: Very quiet, quite

glass of wine, enjoying their dinner. not a rowdy raucous place.

It's a place to

have a dinner and enjoy yourself and go home and call it a day. MEMBER ALBERTI: Would you have

objections to them being open later than 1:00 a.m. on Fridays and Saturdays? MS. BRENNAN: No, sir. Okay. They're

MEMBER ALBERTI:

currently only able to operate their sidewalk caf‚ from April 1st through November 30th. Would you have objections to them operating the sidewalk caf‚, if we had a nice day; and we sometimes do, outside of those months? MS. BRENNAN: No, sir. Okay. Thank you

MEMBER ALBERTI:

Neal R. Gross & Co., Inc. 202-234-4433

Page 127 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Zybach. Zybach. CHAIRMAN BRODSKY: Hello, sir. Could much. MR. KLINE: Call to the stand Bill very much. CHAIRMAN BRODSKY: Mr. Nophlin, any questions? MEMBER NOPHLIN: CHAIRMAN BRODSKY: No. Thank you very Board Members?

I'll just get you to stand real quick. you raise your right hand for me?

Do you

affirm the testimony you give is the truth, the whole truth, nothing but the truth? MR. ZYBACH: I do. Thank you, sir.

CHAIRMAN BRODSKY: MR. KLINE:

State your full name

and address for the record, please. MR. ZYBACH: My name is Bill

I reside at 1650 Q Street, Northwest,

in the Cairo, across the street from Hank's. MR. KLINE: So, that's directly

across the street from Hank's Oyster Bar? Neal R. Gross & Co., Inc. 202-234-4433

Page 128 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 came in. MR. KLINE: prices go up there? MR. ZYBACH: MR. KLINE: I have. All right. And do you And you've seen the went up. MR. KLINE: MR. ZYBACH: Okay. Before Jamie Buck MR. ZYBACH: MR. KLINE: resided there? MR. ZYBACH: MR. KLINE: or do you own there? MR. ZYBACH: MR. KLINE: owned there, since '98? MR. ZYBACH: MR. KLINE: MR. ZYBACH: MR. KLINE: MR. ZYBACH: Since 1999. Since 1999? Right. Okay. Before the prices Own. And how long have you Since 1998. Okay. And do you rent Yes. How long have you

Neal R. Gross & Co., Inc. 202-234-4433

Page 129 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 have knowledge that the prices have gone up in the neighborhood? MR. ZYBACH: MR. KLINE: attribute that? MR. ZYBACH: Well, I attribute it Oh, I do. And to what do you

to what the Williams administration did in terms of bringing capital -- creating a place for capital to come back into the District, and the evolution. There has been a

renaissance in D.C., particularly in the Dupont Circle area, the U Street, the 14th Street area, and it was interesting to me to watch that evolution occur. And at the same time I'm gay. live in Dupont Circle. I

Gay Monopoly has 17th People know But it did not

Street as a place on Gaynopoly. about this area as a gay area.

actually evolve like some of the other neighborhoods did. And part of that was we

have these groups that act as though they represent us in the neighborhood. And

Neal R. Gross & Co., Inc. 202-234-4433

Page 130 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 actually some of us have disassociated ourselves from them because they actually don't represent how we'd like the community to grow. The community has grown beyond being a Now there's strollers on the

gay 'hood.

streets, you know, people have moved into the neighborhood. And part of that is because of

businesses like Jamie's, what we never had, a really cool, upscale, friendly, local business that served the kind of food and beverage and relationship that they brought. To me; and it's been interesting, I hope you don't mind this, but I sat here for three hours and listened to people talk about lot of words, and that's an interesting exercise, but costly. Now, I do organization

design and it's like the cost that's gone into the research, investigation, your time, our time and what is missing from that is the relationship. Our community is growing and

Jamie is a pioneer, like I was a pioneer when I moved into the Cairo and remodeled my place Neal R. Gross & Co., Inc. 202-234-4433

Page 131 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 of day. apologies. MR. KLINE: I'm going to ask you and -MR. KLINE: get back on track here. MR. ZYBACH: Sorry. Okay. My Let me see if we can

some more questions here. MR. ZYBACH: MR. KLINE: establishment obviously? MR. ZYBACH: MR. KLINE: you estimate? MR. ZYBACH: check my Visa card. Too many. We could Absolutely. How many times would Go ahead. You've been in this

I walk by it everyday. Okay. So -And what times of day

MR. KLINE: MR. ZYBACH: MR. KLINE: do you walk by it? MR. ZYBACH:

All different times

I go to work in the morning, so I

pass it in the morning and when I come home in Neal R. Gross & Co., Inc. 202-234-4433

Page 132 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 the evening, and when I go out. MR. KLINE: All right. Now, in

walking by it you've obviously had an opportunity to observe its operation, correct? MR. ZYBACH: MR. KLINE: Yes, I have. What have you observed

with respect to the effects of the establishment, if any, on the peace, order and quiet in the neighborhood? MR. ZYBACH: Well, similarly to

the last person who testified, Hank's is not like the bars on 17th Street. place. It's small. It's a quiet

I mean, the actual bar in It's

the restaurant has four or five seats. a place where people go and dine.

And people

come from all over the city to meet and have conversation. So, to me it's very different

than any of the kinds of places that 17th Street has been known for in the past. And I

think it's a great kind of quiet, great food, upscale, a little more sophisticated. MR. KLINE: All right. Now you

Neal R. Gross & Co., Inc. 202-234-4433

Page 133 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 mentioned that people come from all over the District. MR. ZYBACH: MR. KLINE: Yes. How do they get there

and where do they park, do you know? MR. ZYBACH: Again, for me, most

of the people who come from different places -- and again, I like to frequent it. right across the street. It's

I'm not that good of

a cook and Jamie's a much better cook than I am. And people come by Metro. People bike. We have bike

racks now.

And if you notice,

in that area there's frequently lots of bikes and people do bike there. MR. KLINE: MR. ZYBACH: Okay. In terms of the

parking, you know, parking has been a challenge, and it's not because of Jamie's business that it's been a challenge. And

besides that, it doesn't hold that many people, but lots of people use mass transit. I mean, we've been working -- you know, the Neal R. Gross & Co., Inc. 202-234-4433

Page 134 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 District has been working to get people to use mass transit, and I think the reason that people are doing that is because parking is tough and people are getting used to using mass transit. MR. KLINE: All right. Now, you

heard the investigator testify about other establishments in the neighborhood? MR. ZYBACH: MR. KLINE: Yes. You're aware of other

establishments that are open later than the hours that Hank's is permitted to serve alcoholic beverages? MR. ZYBACH: All of them. I am

familiar with all of them. MR. KLINE: Okay. All right. And

can you recount for the Board the establishments that you're aware of in the immediate vicinity that can serve until 2:00 and 3:00? MR. ZYBACH: Well, so there's There's

Annie's, which is around the corner.

Neal R. Gross & Co., Inc. 202-234-4433

Page 135 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 restaurant. MR. KLINE: have a court reporter. MR. ZYBACH: MR. KLINE: the same time. Yes. So we can't talk at All right. Again, we The Fox. There's Agora. I mean, JR's. What are my Let

me see, what else do I have?

choices in terms of places that I go or take friends to? I mean, all of the bars, except

for Jamie's, as far as I know, have the ability to stay open late. MR. KLINE: said all of the bars. MR. ZYBACH: All right. Agora -Agora is a Now, you

Agora, do you consider that a

bar or how would you categorize that at this point? MR. ZYBACH: Agora has just

recently changed and there have been a number of businesses in that location, and it's turned over a number of times. It has shifted

from the last iteration, which was more of a Neal R. Gross & Co., Inc. 202-234-4433

Page 136 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 bar, and now it's more of a restaurant, Agora is. MR. KLINE: And to your knowledge

are they open until 2:00 and 3:00? MR. ZYBACH: MR. KLINE: Yes, to my knowledge. Now, you live directly

across the street from Hank's Oyster Bar, correct? MR. ZYBACH: MR. KLINE: Right. Right.

Do you have concerns

about the establishment being able to serve until later than 12:00 and 1:00? MR. ZYBACH: I think it would be a

good option for the community to have that kind of an establishment open late, rather than just the bars. I mean, the only other

option that we really have in terms of late night food -- because Agora stops serving food earlier, the only other option we have is Annie's. Annie's has no outside space and I

it's not the same kind of environment.

think it would be a nice addition to be able Neal R. Gross & Co., Inc. 202-234-4433

Page 137 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 to have, you know, a late night snack or drink. MR. KLINE: The establishments

that you mentioned, what's the range in terms of how far are they from Hank's Oyster Bar? MR. ZYBACH: So, Hank's is right And then Annie's So,

across the street from me.

and Dick's, those are around one corner. about a half a block away. And likewise,

about a half a block away from Hank's in the other direction, both north and south. MR. KLINE: All right. And I

think you mentioned Fox and Hounds as well? MR. ZYBACH: MR. KLINE: just so the Board knows? MR. ZYBACH: So, that's right Yes. And where is that,

around -- so, Hank's is on -- we're on Q Street. MR. KLINE: MR. ZYBACH: Right. Going east and west.

So, if you head west and take a right, then Neal R. Gross & Co., Inc. 202-234-4433

Page 138 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 you've got Fox and Hound around the corner. MR. KLINE: MR. ZYBACH: MR. KLINE: Okay. It's the second. So, it's right on 17th

Street in roughly the same block as your building? MR. ZYBACH: Right. There's

actually two establishments there together. MR. KLINE: MR. ZYBACH: Okay. All right.

By the way, and they

share part of the Q Street facing area with Hank's. MR. KLINE: MR. ZYBACH: around the corner. MR. KLINE: In your experience Okay. Yes. They wrap

living across the street from the establishment, have you ever seen any negative effect on peace, order and quiet as a result of Hank's presence there? MR. ZYBACH: MR. KLINE: No, I haven't. Okay. And have you

Neal R. Gross & Co., Inc. 202-234-4433

Page 139 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Hank's. MR. ZYBACH: MR. HIBEY: Right. All of those places ever seen any unsafe situation for vehicles or pedestrians as a result of Hank's being there? MR. ZYBACH: MR. KLINE: No. Okay. I have no

further questions of the witness at this time. CHAIRMAN BRODSKY: MR. HIBEY: MR. ZYBACH: MR. HIBEY: Mr. Hibey?

Good afternoon. Good afternoon. During your testimony

you mentioned a number of restaurants, bars, establishments -MR. ZYBACH: MR. HIBEY: Yes. -- in the vicinity of

have been there since before 2005, correct? MR. ZYBACH: There's been some

businesses that have turned over, but in terms of having some kind of establishment, yes, they have been. MR. HIBEY: And one that turned

Neal R. Gross & Co., Inc. 202-234-4433

Page 140 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 value has -MR. ZYBACH: MR. HIBEY: MR. ZYBACH: MR. HIBEY: Tripled. Tripled? Yes. And you also tied some before that. MR. HIBEY: Right. You also over was Jack's to Agora? MR. ZYBACH: MR. HIBEY: MR. ZYBACH: Right. Okay. It was Pepper's

mentioned that you bought your property in 1999. MR. ZYBACH: MR. HIBEY: Correct. And since then your

of the increase in the property value to the presence of Hank's, is that right? MR. ZYBACH: MR. HIBEY: Absolutely. Okay. Are you aware

that your property value in the last five years has probably not increased any? MR. ZYBACH: Am I aware that it

Neal R. Gross & Co., Inc. 202-234-4433

Page 141 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 hasn't increased? Well, so the assessment

increased, but the sale prices -- and again, remember we kind of went through this depression, recession/depression. That

affected housing prices across the nation and in the District, but it affected them least in the Dupont Circle area. least affected. It was one of the

I was still able, and I was

getting solicitations from realtors to sell my place. And places in my neighborhood, they go

to market, they sell within two weeks. MR. HIBEY: But your property

value hasn't increased from 2005 to today? MR. ZYBACH: Well, and again, I I think in

didn't bring the specific data.

the last year -- there was one year where the assessment went down from the previous year. MR. HIBEY: MR. ZYBACH: or the year before. Yes. So that was last year

Again, I may not be

exactly accurate on this, but it went down one year. But my ability to sell the house and Neal R. Gross & Co., Inc. 202-234-4433

Page 142 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 the selling prices for my unit are above my assessment, and they have maintained a higher sell rate than other areas. MR. HIBEY: MR. ZYBACH: So, I want to -And have not been That's the

negatively impacted by Hank's. economy. economy.

That's what's been happening in the But they have been positively People want to come and

impacted by business.

live and walk across the street to place like Hank's. MR. ZYBACH: But you just told me

that everything's been the same since 2005. MR. ZYBACH: And in terms of my -My

I said in terms of my assessment.

assessment went down one year in the past five years, but the ability to sell my property has stayed up or maintained, or led the trends in the market. Again, all you have to do is look

at people trying to sell real estate in the neighborhood. CHAIRMAN BRODSKY: Sir, we get it.

Neal R. Gross & Co., Inc. 202-234-4433

Page 143 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 any? MR. HIBEY: Voluntary Agreement? MR. ZYBACH: No, I haven't, but I Again, we talk Have you seen the We get it. MR. ZYBACH: Okay. Thank you.

CHAIRMAN BRODSKY:

Mr. Hibey, your next question if

know one of the provisions.

about it in the neighborhood, about how this group has forced this particular business to agree to things like not staying open. mean, that's an obvious thing. I

So, why is

that that this particular business has to do this? And I understand the fears that people

have and why this was entered into, but they've demonstrated being a good neighbor. And so, to me the issue of having them treated differently than the other businesses doesn't make sense at all. And I don't understand all

your agreements and all that new kind of stuff, but it just doesn't make sense to, you Neal R. Gross & Co., Inc. 202-234-4433

Page 144 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 no question. MR. ZYBACH: MR. HIBEY: Well, yes, they are. Okay. Thank you. I because I -MR. HIBEY: It's sort of a yes or know, single out one business and have other -- I mean, that stuff that was read earlier about Lauriol Plaza and all that, there's other agendas or issues going on. Hank's. MR. HIBEY: Well, so do you think This is not

the other establishments that are open until 2:00 and 3:00 in the morning, are they louder at 2:00 and 3:00 in the morning? MR. ZYBACH: I live where I live

don't have any questions. CHAIRMAN BRODSKY: any questions? MEMBER ALBERTI: CHAIRMAN BRODSKY: MEMBER ALBERTI: Real quick. Mr. Alberti? Relative to the Board Members,

rest of the District your property values in Neal R. Gross & Co., Inc. 202-234-4433

Page 145 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 your neighborhood, do you feel that they fared better or worse than the rest of the District in general? MR. ZYBACH: They've fared better. Okay. Thank you.

MEMBER ALBERTI:

And now I just want to go to the sidewalk caf‚. You live right across the street and

Hank's got seating for about 20, I think, on their sidewalk caf‚. What do you think is

reasonable hours for them to be open in the evening? MR. ZYBACH: Okay. So, there's

traffic on 17th Street until the bars close. MEMBER ALBERTI: MR. ZYBACH: Yes.

And so to me, having

-- and if you go buy, you'll see that Annie's is always busy late. In fact, they stay open And so,

24 hours a day on the weekends.

having another option in terms of outside seating I think would be valuable. People sit

across the street at the Java House, even though it's closed, in their outside seating Neal R. Gross & Co., Inc. 202-234-4433

Page 146 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Chairman. CHAIRMAN BRODSKY: MEMBER GANDHI: testimony, sir. Yes, sir. area. The police sit out there. MEMBER ALBERTI: So according to

you, it wouldn't be inappropriate for those -MR. ZYBACH: No. -- unreasonable

MEMBER ALBERTI:

for that outdoor patio to be open until the other establishments close? MR. ZYBACH: Right. Thank you.

MEMBER ALBERTI: MR. ZYBACH: Yes.

CHAIRMAN BRODSKY: MEMBER GANDHI:

Mr. Gandhi?

Thanks, Mr.

Thank you for your

Wanted to ask you about the Do you support the

Voluntary Agreement.

termination of the Voluntary Agreement? MR. ZYBACH: I do. Okay. How do you

MEMBER GANDHI:

support the termination of a document you've never seen? Neal R. Gross & Co., Inc. 202-234-4433

Page 147 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 early. MR. ZYBACH: inappropriate. Because I think it's

Again, there's lots of

technical things that I've never seen, but in terms of the impact -- because all I can do as a resident, because I'm not going to spend my time looking at all these Voluntary Agreements, is see the impact of it. And it

seems that they are treated differently than the other businesses and I think that is really, really unfair. And they've been -How so?

MEMBER GANDHI: MR. ZYBACH: close earlier. MEMBER GANDHI: What else? MR. ZYBACH: primary thing that I see.

Because they have to

Okay.

Close

To me that's the Again, not knowing

what's in the Voluntary Agreement -MEMBER GANDHI: Okay. Well, All

that's what the whole hearing's about. right.

So, really it's the closing early to

you is the primary reason? Neal R. Gross & Co., Inc. 202-234-4433

Page 148 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Chairman. Neal R. Gross & Co., Inc. 202-234-4433 Jones. MEMBER JONES: Thank you, Mr. testimony. MR. ZYBACH: MEMBER JONES: Okay. Mr. Chairman? Yes, sir, Mr. the details. MR. ZYBACH: The primary reason is

that I think that -- so again, I don't pay attention to the agreements or the laws of any of the establishments on 17th Street, but I do know that they are treated differently because I don't have the same experience with them that I have with the other businesses. MEMBER GANDHI: MR. ZYBACH: Okay.

So, no, I don't know

Was I expected to know the

details of the Voluntary Agreement? MEMBER GANDHI: Thank you so much. MR. ZYBACH: Yes. I appreciate your That's all right.

MEMBER GANDHI:

CHAIRMAN BRODSKY:

Page 149 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 You said you live directly across the street from the Licensee's establishment? MR. ZYBACH: MEMBER JONES: there how long again? MR. ZYBACH: MEMBER JONES: Since 1998. Since 1998? In Yes. And you've been

terms of peace, order and quiet, I don't know if you're aware that those are I guess generally protest issues. MR. ZYBACH: MEMBER JONES: I heard that earlier. Okay. Are you

aware or can you say that you feel as though the operation of this establishment has negatively contributed to your personal peace, order and quiet. neighborhood? Do you feel as safe in your

Do you feel more disrupted,

more disturbed because of noise because of the operations of this establishment? MR. ZYBACH: I would say that this

establishment has reduced -- it's not a noisy establishment like some of the other ones, so Neal R. Gross & Co., Inc. 202-234-4433

Page 150 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 it's kind of mellowed out this part of the neighborhood. So, you asked me the question

in a double negative, so I'm not quite sure how to answer. MEMBER JONES: Do you feel as

though the operation of this establishment -or tell me how you feel as though the operation of this establishment has impacted your sense of peace, order and quiet? MR. ZYBACH: And I think like the

other person who testified, and it's called the broken glass theory, which says if you have nice places as opposed to broken glasses, decrepit places, it attracts nice people and their attitude shifts. MEMBER JONES: concise answer? MR. ZYBACH: It has added to the Can you give me a

tranquility of the neighborhood. MEMBER JONES: Okay. In terms of

do you feel as though the operation of this establishment has contributed -- well, tell me Neal R. Gross & Co., Inc. 202-234-4433

Page 151 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 how you feel as though the operation of this establishment has contributed to the parking situation or the general traffic flow in your neighborhood, concisely. MR. ZYBACH: has had any impact. MEMBER JONES: mentioned property values. MR. ZYBACH: MEMBER JONES: discussion about that. sure I'm clear. Yes. And there was some Okay. And you I don't see that it

I just want to make

Tell me how you feel as

though the specific operation of this establishment has impacted your property value? And it could be has increased it,

decreased it, or no effect at all. MR. ZYBACH: Businesses like

Hank's and Komi's and Sushi Taro have raised the value of my property. MEMBER JONES: Okay. Now, in all

of that if the operating hours of this establishment were expanded, do you feel as Neal R. Gross & Co., Inc. 202-234-4433

Page 152 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 sir. Mr. Kline, any more -Neal R. Gross & Co., Inc. 202-234-4433 and parking? MR. ZYBACH: I don't think that it one. though that would have a positive effect, negative effect or no effect at all on all of those issues that I just asked you a question about? MR. ZYBACH: I'm not well enough

versed to know whether they would -- what kind of impact they would have on the economic value or property values. MEMBER JONES: Okay. So, that's What

You don't know about that one.

about peace, order and quiet? MR. ZYBACH: have a positive impact. MEMBER JONES: Okay. And traffic I think that it would

would have impact whatsoever. MEMBER JONES: Okay. Thanks.

Thank you, Mr. Chairman. CHAIRMAN BRODSKY: You're welcome,

Page 153 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 redirect. CHAIRMAN BRODSKY: MR. KLINE: Yes, sir. MR. KLINE: Yes, just a little

Mr. Zybach, you were

asked whether the other establishments that are open until or serve until 2:00 and 3:00, whether they're louder during those later hours, and you responded that they were. that correct? MR. ZYBACH: MR. KLINE: Yes. All right. Are those Is

establishments different from this establishment? MR. ZYBACH: MR. KLINE: MR. ZYBACH: They are. How so? Again, they're bars.

The 17th Street corridor is known as a place for people to come and party late at night. And we only have one place on the street where people actually come to eat and converse, and that's really Annie's. The other places shift

from serving food to really being more of a Neal R. Gross & Co., Inc. 202-234-4433

Page 154 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 bar kind of environment. And so, having

Hank's open late would I think provide more of a destination for people who aren't just coming out to party. I think we need more of

a mix in the neighborhood for that. MR. KLINE: Right. So just so I'm

clear, do you have an opinion today as to if Hank's were allowed to stay open later or serve later until 2:00 and 3:00, whether people would be louder or that would in any have an adverse impact on the neighborhood? MR. ZYBACH: Again, as I

mentioned, I think Hank's to some degree has a calming effect in the neighborhood. think it would be louder. I don't

There would be

people who would be coming in there, but they're not a dance crowd. And people come to

the neighborhood to dance and party, and it's not that kind of a crowd. And we need places

in our neighborhood where we can go and just sit and have chat and late night snacks and drinks. Neal R. Gross & Co., Inc. 202-234-4433

Page 155 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 MR. KLINE: Right. Thank you. I

don't have any further questions. CHAIRMAN BRODSKY: additional recross? MR. HIBEY: I want to follow up on Mr. Hibey, any

a question one of the Board Members asked. You said that if Hank's stayed open later it would have a positive effect on the peace, order and quiet in the neighborhood. MR. ZYBACH: MR. HIBEY: Yes. How would Hank's

staying open later have a positive impact on the quiet in the neighborhood? MR. ZYBACH: So, right now there's

nothing -- you've got the Java House and you've got Hank's across from each other. People come and hang out there because there's nothing open. And to me, having an

establishment open that is civil will discourage people from just coming and hanging out on Q Street, as opposed to 17th. They're

already hanging out on 17th until the other Neal R. Gross & Co., Inc. 202-234-4433

Page 156 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 today. places close. MR. HIBEY: So, your response is

to open a bar until 3:00 a.m.? MR. ZYBACH: This is not a bar. Mr. Hibey, your Do you have

CHAIRMAN BRODSKY:

question was asked and answered.

a different question you'd like to follow up with? MR. HIBEY: No, I'm done. Thank you, sir.

CHAIRMAN BRODSKY: Thank you very much.

Sir, thank you for your time here We really appreciate it. Mr. Kline, your next witness? MR. KLINE: Yes, thank you. I

call to the stand Jamie Leeds. CHAIRMAN BRODSKY: MS. LEEDS: Hi. Raise your Hello.

CHAIRMAN BRODSKY: right hand for me.

Do you affirm the

testimony you give is the truth, the whole truth, nothing but the truth? Neal R. Gross & Co., Inc. 202-234-4433

Page 157 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 much. MR. KLINE: State your name and MS. LEEDS: Yes, I do. Thank you so

CHAIRMAN BRODSKY:

address for the record, please. MS. LEEDS: Jamie Leeds, 5307 14th

Street, Washington, D.C., 20011. MR. KLINE: And what's your

connection with Hank's Oyster Bar? MS. LEEDS: MR. KLINE: been the chef/owner? MS. LEEDS: MR. KLINE: Since 2005, May. And what did you do I'm the chef/owner. And how long have you

before you were the chef/owner there? MS. LEEDS: I was the chef of a

restaurant called 15 Ria, which was in the Washington Terrace Hotel. MR. KLINE: Okay. Are you

involved in other licensed establishments in the District of Columbia? MS. LEEDS: In the District? Yes,

Neal R. Gross & Co., Inc. 202-234-4433

Page 158 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 I'm also an owner of CommonWealth Gastropub, which is a restaurant on Irving Street in Columbia Heights. MR. KLINE: Okay. And do you have

restaurants elsewhere in the Metropolitan area? MS. LEEDS: I have a second Hank's

Oyster Bar in Old Town, Virginia. MR. KLINE: MS. LEEDS: MR. KLINE: Who's Hank? Hank was my dad. Okay. And tell the

Board what kind of place this is. MS. LEEDS: Hank's is a casual

neighborhood restaurant, seafood, kind of New England-y beach-y style. We have oysters from

around the world and we have a variety -- I change the menu daily and I print the menu inhouse so the menu is -- I source all the fish mostly locally and sustainable. And it's just

a very fun convivial kind of place. MR. KLINE: Okay. In terms of the

layout in the establishment, is there a bar in Neal R. Gross & Co., Inc. 202-234-4433

Page 159 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 bar. the establishment? MS. LEEDS: There's a very small And then there's

It's a five-seat bar.

an ice bar where we shuck the oysters and do the shrimp. MR. KLINE: Now, at the ice bar is

there a bartender back there slinging drinks? MS. LEEDS: he's very busy. There's a shucker and

And then there's a bartender. Okay. So, people go

MR. KLINE:

there mostly to dine, is that correct? MS. LEEDS: MR. KLINE: Yes. Is there a way that

someone could come in there and just drink on a regular basis? MS. LEEDS: Not really, no,

because we have -- people just don't do that. It's not that type of establishment. MR. KLINE: Now you have a

sidewalk caf‚ as well, correct? MS. LEEDS: MR. KLINE: Yes, 20 seats. Twenty seats. And how

Neal R. Gross & Co., Inc. 202-234-4433

Page 160 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 calls, no. MR. KLINE: Now in terms of complaints. MR. KLINE: complained about noise? MS. LEEDS: We never get any No one's ever 50. MR. KLINE: All right. You're many seats in the interior? MS. LEEDS: The interior is about

there during operations, not all the time, but on occasion, correct? MS. LEEDS: MR. KLINE: Yes. Have you ever had any

complaints concerning the operation of the establishment? MS. LEEDS: We've never had any

parking, where do your patrons park? MS. LEEDS: We recommend the lot

on P Street if you're driving in, but you know, we have a lot of local neighborhood people that come in that walk or take the Neal R. Gross & Co., Inc. 202-234-4433

Page 161 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Go ahead. MS. LEEDS: is what we recommend. MR. KLINE: Okay. Did you at some But the P Street lot Metro. MR. KLINE: MS. LEEDS: blocks away, but -MR. KLINE: Did you -- I'm sorry. Okay. Which is just a couple

point offer valet parking? MS. LEEDS: We did at the And nobody

beginning, we offered valet. partook in it.

I mean, it wasn't a successful

venture, so we decided not to do it anymore. MR. KLINE: And do you know why

that is in terms of why people didn't participate in the valet parking program? MS. LEEDS: I'm not sure. Maybe

they didn't want to pay for parking. MR. KLINE: MS. LEEDS: Okay. I'm not really sure.

I was surprised, because I thought the valet Neal R. Gross & Co., Inc. 202-234-4433

Page 162 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 somewhere. -- you know, we were doing it to be able to contribute to the community. I even thought

people that weren't actually coming to Hank's would use the valet, but -MR. KLINE: And where the cars

parked who took advantage of the valet service? MS. LEEDS: They have a lot

I don't know exactly. MR. KLINE: MS. LEEDS: Okay. It was, you know, a

different business. MR. KLINE: Okay. What do you do,

if anything, to control the noise in the establishment? MS. LEEDS: Well, it's never been

a problem, but you know, we can close the front doors if we have to. been an issue. MR. KLINE: If you were allowed to But there's never

be open later and allowed to serve alcoholic beverages later, do you anticipate that there Neal R. Gross & Co., Inc. 202-234-4433

Page 163 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 so. MR. KLINE: All right. Based on would be a noise problem with the establishment? MS. LEEDS: MR. KLINE: MS. LEEDS: No, I don't. And why not? Just because of the It's a more

type of clientele that we have.

upscale, you know, a little bit older clientele and people that, you know, aren't kind of the rowdy partying type. MR. KLINE: Now you've

entertained, and it's not exactly the subject of this hearing, but just so that we're clear, you've entertained expanding into the space next door, is that correct? MS. LEEDS: MR. KLINE: Yes. And have you

negotiated what you believe might be a market rent for the space next door? MS. LEEDS: I believe. I believe

your experience and in terms of that Neal R. Gross & Co., Inc. 202-234-4433

Page 164 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 gone up. MR. KLINE: MS. LEEDS: higher for that space. MR. KLINE: So if you expand in Okay. My rent is going to be experience, have you seen any change in the rental rates for the neighborhood? MS. LEEDS: Well, it's definitely

the new space, then you'll be paying more rent than five years ago, is that correct? MS. LEEDS: MR. KLINE: Yes, per square foot. All right. And

obviously your restaurant has operated in the neighborhood for the last five years, correct? MS. LEEDS: MR. KLINE: Yes. Okay. Now, five years

ago you entered into a Voluntary Agreement, is that correct? MS. LEEDS: MR. KLINE: MS. LEEDS: Yes. Why did you do that? Because I wanted to

get open and I felt like I had to. Neal R. Gross & Co., Inc. 202-234-4433

Page 165 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 to hearing? MS. LEEDS: go to hearing. MR. KLINE: MS. LEEDS: And why was that? They just kept saying, There was no option to MR. KLINE: Why didn't you just go

you know, negotiate between the parties. MR. KLINE: Okay. Now in terms of

the Voluntary Agreement, why is it that you wish to be free of the Voluntary Agreement? MS. LEEDS: Well, it's It limits my

restrictive, first of all.

seating and I want to be able to expand. MR. KLINE: MS. LEEDS: Okay. It restricts my hours

and it restricts when I can open the patio. It's limiting all around. MR. KLINE: MS. LEEDS: All right. As an operator, as a

successful operator who can show a good record and contribution to the neighborhood, I feel like Voluntary Agreements are really for Neal R. Gross & Co., Inc. 202-234-4433

Page 166 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 operation? MR. KLINE: No, I'm saying if people that, you know, maybe wouldn't be as good of operators as I am. MR. KLINE: Let's say that you by

whatever process are allowed to make changes to your establishment and you make those changes, and you discover that there are complaints about noise, what will you do? MS. LEEDS: In my present

you're allowed to make changes to your establishment. MS. LEEDS: MR. KLINE: My present operation? Yes, to your present

operation, and there are complaints about noise, what will you do? to that? MS. LEEDS: I would do everything How would you react

I can to reduce the noise. MR. KLINE: Okay. Do you view

that as something that's your responsibility as a business owner? Neal R. Gross & Co., Inc. 202-234-4433

Page 167 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 MS. LEEDS: Yes, I mean, I think

it's important to be a good neighbor, and I've always thought that. MR. KLINE: All right. Now,

you've heard testimony today about a number of establishments that are open later than you are in the neighborhood, correct? MS. LEEDS: MR. KLINE: Yes. Where does your

establishment fall in terms of size relative to those other establishments? MS. LEEDS: Hank's is smaller than

all of the other establishments. MR. KLINE: establishments? MS. LEEDS: Except Komi just Than all of the other

reduced -- well, Komi doesn't stay open, so I guess that wouldn't be in the mix. smaller. MR. KLINE: So of the Yes, it's

establishments that remain open, can you recount for the Board what those are again? Neal R. Gross & Co., Inc. 202-234-4433

Page 168 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 over. are they? We've heard testimony, but just so we're clear. JR's is one? MS. LEEDS: JR's, Fox and Hounds,

Agora, Annie's and Dupont Italian Kitchen. MR. KLINE: And all of those

establishments are larger than Hank's Oyster Bar? MS. LEEDS: MR. KLINE: Yes. Now having operated

this establishment for five years, you have a sense of who your customers are, correct? MS. LEEDS: MR. KLINE: Yes. All right. Well, who

Where do they come from? MS. LEEDS: They come from all

We've really established ourselves as

a dining destination, which is, you know, great, but we also have a very loyal local clientele as well. So, it's a very diverse,

very diverse clientele. MR. KLINE: Okay. I don't have

any further questions of the witness at this Neal R. Gross & Co., Inc. 202-234-4433

Page 169 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 time. CHAIRMAN BRODSKY: MR. HIBEY: Mr. Hibey?

Thank you. You stated that

Good afternoon.

you were forced to sign the Voluntary Agreement in 2005, is that right? MS. LEEDS: If I wanted to get

open and not spend any money, yes, any further money. MR. HIBEY: Okay. Are you saying

that the Board forced you to sign the Voluntary Agreement? MS. LEEDS: force me, no. MR. HIBEY: So, you weren't forced They didn't physically

to sign the Voluntary Agreement? MS. LEEDS: I was hypothetically

forced because I didn't want to spend any more money, money that I didn't have, because I had signed a lease which I was paying rent on and I was hired and paying an attorney to fight this battle that I really didn't think that I Neal R. Gross & Co., Inc. 202-234-4433

Page 170 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 choice. MR. HIBEY: MS. LEEDS: MR. HIBEY: Yes or no? Yes. And your attorney was needed to fight. MR. HIBEY: So you had an attorney

representing you back then in 2005? MS. LEEDS: I didn't see any other

involved in the negotiations for that Voluntary Agreement, right? MS. LEEDS: MR. HIBEY: That's right. And when you entered

into that Voluntary Agreement you understood that the Voluntary Agreement became a part of your license, is that right? MS. LEEDS: MR. HIBEY: Yes. Now the Voluntary

Agreement addresses a couple points of operation of your business, right? MS. LEEDS: MR. HIBEY: Yes. And you currently

abide by the Voluntary Agreement, is that Neal R. Gross & Co., Inc. 202-234-4433

Page 171 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 point? about it. MR. HIBEY: Right, but there's right? MS. LEEDS: MR. HIBEY: Yes. It's not impossible to

continue to abide by the Voluntary Agreement, is it? MS. LEEDS: MR. HIBEY: What do you mean? Well, I mean, there

isn't anything in the Voluntary Agreement that you currently cannot abide by today? MS. LEEDS: Well, I'm abiding

nothing in the Voluntary Agreement that it's impossible for you to somehow follow? CHAIRMAN BRODSKY: getting at here, Mr. Hibey? what you're asking. MS. LEEDS: Yes, what is the What are you I'm not so sure

I mean, I'm following it. MR. HIBEY: Well, I'm just trying

to find out what part of the Voluntary Agreement needs to be terminated. Neal R. Gross & Co., Inc. 202-234-4433

Page 172 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 coming. questions. CHAIRMAN BRODSKY: any questions? Nophlin. MEMBER NOPHLIN: Thank you for Board Members, relevance. CHAIRMAN BRODSKY: what you asked. Yes, that's not CHAIRMAN BRODSKY: not what you asked. MR. KLINE: Objection to the Well, that's

You're asking her to answer

something I dont' think she can even answer, so could you rephrase the question? MR. HIBEY: Okay. I understand.

Have you analyzed the impact of additional seats in your current location? MS. LEEDS: MR. HIBEY: No. Have you analyzed the

impact of additional hours at your location? MS. LEEDS: MR. HIBEY: No. I don't have any

We'll start off with you, Mr.

And let me say that I read the Neal R. Gross & Co., Inc. 202-234-4433

Page 173 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Just -MS. LEEDS: Ambient music. Ambient music? report. You don't have any music in your

establishment, do you? MS. LEEDS: No live music. Not live music?

MEMBER NOPHLIN:

MEMBER NOPHLIN: Nothing amplified? MS. LEEDS: No.

MEMBER NOPHLIN: That's all I have, Mr. Chair. CHAIRMAN BRODSKY: MEMBER BROOKS: floors do you have? MS. LEEDS:

Okay.

Thank you.

Mr. Brooks?

Yes, how many

One floor. One floor? And

MEMBER BROOKS:

your outside dining, outside seating, how many seats? MS. LEEDS: Twenty. Twenty? And if

MEMBER BROOKS:

you expand it, what's the possibility of additional seats outside? Neal R. Gross & Co., Inc. 202-234-4433

Page 174 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Last year. MS. LEEDS: Eighteen percent. Eighteen percent outside? MS. LEEDS: Yes. Okay. And how MS. LEEDS: An additional 20. So, a total of 40

MEMBER BROOKS:

MEMBER BROOKS:

many employees do you employ? MS. LEEDS: Thirty-eight. Thirty-eight?

MEMBER BROOKS: MS. LEEDS: Yes.

MEMBER BROOKS: D.C. residents? MS. LEEDS:

Are most of them

Most of them, yes.

Most of them live in the neighborhood. MEMBER BROOKS: MS. LEEDS: Yes. Okay. And the Right. Right.

MEMBER BROOKS:

amount of sales, what percentage is alcohol? MS. LEEDS: It's about -Approximately.

MEMBER BROOKS:

MEMBER BROOKS:

Neal R. Gross & Co., Inc. 202-234-4433

Page 175 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Chairman. Jones. MEMBER JONES: Thank you, Mr. alcohol? Okay. Thank you, Mr. Chairman. You're welcome. Okay. Hang

CHAIRMAN BRODSKY:

Any other questions? on one second. Mr. Gandhi?

(No audible response.) CHAIRMAN BRODSKY: All right, Mr.

I think the attorney for the

Protestant group asked you had you done any analysis on the impact of additional hours and additional seats. MS. LEEDS: Yes. I think your

MEMBER JONES: response to that was no. MS. LEEDS:

Correct. Can you in any way

MEMBER JONES:

quantify whether or not additional hours would generate more revenue for you as a business? And if so, give me a feel for what additional revenue you'd be able to bring in if you were Neal R. Gross & Co., Inc. 202-234-4433

Page 176 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 wants. MEMBER JONES: Okay. So, you able to be open to the extent of the hours that you would like. MS. LEEDS: You know, I don't do I'm

any market research and things like that. instinctual.

I talk to my customers, I talk

to the neighbors, I talk to the people that come in and, you know, they all -- you know, they want me to stay open later and expand. So, that's kind of what I go on. MEMBER JONES: MS. LEEDS: Okay.

Is what my clientele

don't have a good feel right now if you expanded by 20 seats that you'd be able to, I guess, generate enough revenue to offset the costs associated with those additional seats and the operating time, the cost of utilities and your staff that you have to pay, etcetera? It's just a gut feel that you have that you want to expand? MS. LEEDS: No, I mean, I'm sure

Neal R. Gross & Co., Inc. 202-234-4433

Page 177 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 that if I expanded 20 seats, an additional 20 seats that I would increase my revenue. mean, that's why I want to do it. know exactly. I

I don't I

I haven't run the numbers.

haven't done spreadsheets to know exactly what it would do, but I'm sure it would cover the utilities and the extra things that it would need to stay open. MEMBER JONES: MS. LEEDS: Okay.

Is that what you mean? Yes, I guess what

MEMBER JONES:

I'm trying to get at is one of the reasons why you want to expand both hours and seats is it will help better your ability to generate revenue? MS. LEEDS: the reasons, yes. MEMBER JONES: Cool. So from an Sure, that is one of

analysis standpoint you've at least done that part of your analysis to know that you believe that it will have a positive impact on your revenue and that's one of the reasons why you Neal R. Gross & Co., Inc. 202-234-4433

Page 178 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 oysters. Neal R. Gross & Co., Inc. 202-234-4433 vegetarian. MS. LEEDS: We have tons of -I don't eat come in. MEMBER GANDHI: Because I'm a it. want to do it? MS. LEEDS: Yes. Okay. Thank you.

MEMBER JONES:

Thank you, Mr. Chairman. CHAIRMAN BRODSKY: questions from the Board? MEMBER GANDHI: How are you? MS. LEEDS: I'm good. Good. As my Any other

Mr. Gandhi? Thank you.

MEMBER GANDHI:

Chairman would say, thank you for doing business in the District of Columbia. MS. LEEDS: Sure. Really appreciate

MEMBER GANDHI:

I've never been to Hank's. MS. LEEDS: Oh, you'll have to

MEMBER GANDHI:

Page 179 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 MS. LEEDS: on the market. MEMBER GANDHI: I think I had But if I -- tons of vegetables

oysters once actually in my life. wasn't, I'd be there.

Let's go through your VA. MS. LEEDS: Okay. You know, because

MEMBER GANDHI:

what I'm really trying to figure out at the end of the day is why you'd like to terminate it. MS. LEEDS: Yes. Is it the hours?

MEMBER GANDHI: Is it the seating? Is it you hate VAs?

Is it everything in there? You know what I mean? Yes. I really need to

MS. LEEDS:

MEMBER GANDHI:

understand it. So the capacity I sort of understand. You want to expand? MS. LEEDS: Yes. Right? So, that

MEMBER GANDHI:

sort of makes sense that you don't want that Neal R. Gross & Co., Inc. 202-234-4433

Page 180 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 3:00? MS. LEEDS: I mean, you know, I in your VA. MS. LEEDS: Yes. Interior hours,

MEMBER GANDHI:

according to your VA it says you can serve food until 2:00 a.m. and 3:00 a.m., but you'd like to -MS. LEEDS: No. Oh, food? Food, yes. Yes.

MEMBER GANDHI: MS. LEEDS:

Food only. Yes.

MEMBER GANDHI: MS. LEEDS: Yes.

MEMBER GANDHI: serve alcohol as well? MS. LEEDS: Yes.

But you'd like to

MEMBER GANDHI:

Until 2:00 and

would like to have the option. MEMBER GANDHI: MS. LEEDS: Okay.

Possibly do that. Do you currently

MEMBER GANDHI:

serve food until 2:00 and 3:00? Neal R. Gross & Co., Inc. 202-234-4433

Page 181 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Okay. 12:00? 12:00. MEMBER GANDHI: Okay. 11:00 to this -MS. LEEDS: Friday and Saturday. oyster hour. MEMBER GANDHI: MS. LEEDS: Oyster hour? But we do a late night We do do a late night MS. LEEDS: No. You don't? What

MEMBER GANDHI: time do you close? MS. LEEDS:

Close at 10:00 during

the week and 11:00 on the weekends. MEMBER GANDHI: Okay. And if

Yes, from 11:00 to

And there's alcohol as well? MS. LEEDS: Yes, inside. Until 12:00?

MEMBER GANDHI:

And do you have a bar area there? MS. LEEDS: Yes, it's a very small

six-seat bar. MEMBER GANDHI: then mostly tables? Neal R. Gross & Co., Inc. 202-234-4433 Six-seat bar? And

Page 182 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 a CR? MS. LEEDS: Yes. And you're not MS. LEEDS: Yes, it's all tables. Okay. So if you

MEMBER GANDHI:

didn't have this clause in your VA, do you expect that people would be coming there to drink or to eat and also maybe have a drink along with it? MS. LEEDS: Mostly to eat and to

have a drink, a glass of wine. MEMBER GANDHI: Okay. So you are

MEMBER GANDHI:

going to be changing into -- you're not applying to change or anything like that? want to stay as a restaurant, correct? MS. LEEDS: That's right. Great. Your You

MEMBER GANDHI:

outdoor sidewalk caf‚ hours currently restrict you, I believe they restrict your hours and they restrict the days that you can be open, is that right? MS. LEEDS: No.

Neal R. Gross & Co., Inc. 202-234-4433

Page 183 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 possibly. MEMBER GANDHI: MS. LEEDS: Yes? hours? MS. LEEDS: Just the hours. Okay. 11:00 p.m. MEMBER GANDHI: It's just the

MEMBER GANDHI:

Sunday through Thursday and midnight Friday and Saturday? MS. LEEDS: Yes. Okay. Would you

MEMBER GANDHI:

want to be open after that on your outdoor caf‚? MS. LEEDS: Outside, you know,

As an option. So if you had the

MEMBER GANDHI: option, would you? MS. LEEDS:

I don't know.

It

depends on, you know, what the market would bear. MEMBER GANDHI: about last call. Okay. It talks

Do you currently do that? Yes, we do. Yes,

MS. LEEDS:

Neal R. Gross & Co., Inc. 202-234-4433

Page 184 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 to? MEMBER GANDHI: MS. LEEDS: Right. that? we're very careful about making sure people get off the patio time. MEMBER GANDHI: Got it. You close

your doors and windows at 9:00? MS. LEEDS: Yes. Would you change

MEMBER GANDHI: I'm curious. MS. LEEDS:

Would I -The VA currently

MEMBER GANDHI:

says that you will close all windows to the establishment promptly at 9:00. that? MS. LEEDS: Yes. I mean, would you Do you do

MEMBER GANDHI:

continue to do that if there was no VA? MS. LEEDS: Yes, if I had to. No, I'm asking if

MEMBER GANDHI:

you didn't have to, if there was no VA? MS. LEEDS: Oh, if I didn't have

You know, it depends

Neal R. Gross & Co., Inc. 202-234-4433

Page 185 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Trio. MEMBER GANDHI: Right. What time next to you? me? on what people want, you know. The clients

sometimes they want to have the door open. They like to sit with the door open. Sometimes they don't. You know, it just

depends on, you know, what the customer -- the customer dictates what I do. MEMBER GANDHI: And how many

people do you usually have there around 11:00 or midnight? MS. LEEDS: It's very quiet. It really dies down.

I mean, we're closing up, so

maybe there will be 15 or so people there. MEMBER GANDHI: And your neighbor

is open until what time again? MS. LEEDS: On the other side of He's open

Well, it's around the corner.

to 2:00 during the week and 3:00 -MEMBER GANDHI: How about what's

What's right next to you? MS. LEEDS: Right next to me is

Neal R. Gross & Co., Inc. 202-234-4433

Page 186 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 you think? other side? MS. LEEDS: is Fox and Hounds. MEMBER GANDHI: Hounds, do you know? MS. LEEDS: That's a bar. Okay. That's a CT What's Fox and And around the corner anybody. MEMBER GANDHI: What's on the about -MS. LEEDS: They don't really see are they open until? MS. LEEDS: It's a side caf‚.

2:00 and 3:00 are their hours, I'm pretty sure. MEMBER GANDHI: Okay. And how

MEMBER GANDHI:

Is it a tavern, do you know? MS. LEEDS: I'm not sure what kind

of license he has. MEMBER GANDHI: All right. So,

then it talks about nightly outside chair storage. I mean, has that ever been an issue? Neal R. Gross & Co., Inc. 202-234-4433

Page 187 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 VA? MEMBER GANDHI: If you didn't have complaints. MS. LEEDS: No, we've never gotten

We lock everything up and clean

everything really well. MEMBER GANDHI: Your VA talks

about loitering, trash removal and outside maintenance. Has that ever been an issue? MS. LEEDS: No, we have a trash

company that, you know, comes every day and picks up the trash. MEMBER GANDHI: All right. It

talks about consideration of the neighborhood. It talks about noise, music and dancing. No

outdoor music live or taped shall be heard or played in the outdoor caf‚. If this didn't

exist, how would you change your operations of the establishment? MS. LEEDS: If I didn't have the

-- again, we're going through it. MS. LEEDS: the music and -Neal R. Gross & Co., Inc. 202-234-4433 Oh, I'm sorry. With

Page 188 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 thing. anything. MEMBER GANDHI: Yes, so we're

talking about specifically No. 8, no outdoor music live or shape shall be -MS. LEEDS: I wouldn't change I'm

I wouldn't have outdoor music.

not that kind of -- I'm a chef. a food person, right? about food.

You know, I'm

My establishment is

So, it's not about, you know,

music and dancing, that kind of stuff. MEMBER GANDHI: Okay. And then it

talks about sidewalk caf‚ usage provisions. Yes, it does say shall be operated from April 1 to November 30th. MS. LEEDS: That would be -MEMBER GANDHI: And I know that Yes, that's another

Member Alberti asked that question already, so we'll skip that. MS. LEEDS: Yes, it would be nice

to be able to open in May, because it does get warm. MEMBER GANDHI: And then it talks

Neal R. Gross & Co., Inc. 202-234-4433

Page 189 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 oyster bar. Ever have any issues, ever had any ABRA violations at Hank's? MS. LEEDS: No. Never? with that. about umbrellas. it. MS. LEEDS: Yes, I have an issue So, You can only have Hank's on

That I think is ridiculous.

on the record -MEMBER GANDHI: wanted my name on it? Yes, what if she

Gandhi's? It would be a

CHAIRMAN BRODSKY: violation of her VA. MEMBER ALBERTI: conflict of -MEMBER GANDHI:

That would be a

Wait a minute now. Unless you

CHAIRMAN BRODSKY: called it Mital's Oyster Bar. MEMBER GANDHI:

I can never buy a

MEMBER GANDHI: MS. LEEDS: No.

MEMBER GANDHI:

You've never been

Neal R. Gross & Co., Inc. 202-234-4433

Page 190 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 cited for anything, ever been -MS. LEEDS: There was one time

when my manager didn't have her license, but that's -- I think there was only incidence of that. MEMBER GANDHI: And how about any

of your other establishments in the District? MS. LEEDS: have something. No. CommonWealth did

Oh, CommonWealth had a It was

violation when we first opened. something about the hours. MEMBER GANDHI: you remember? MS. LEEDS:

What was it, do

I think maybe we were

open later than we were supposed to be. MEMBER GANDHI: at this location? MS. LEEDS: No. Great. Hey Okay. But nothing

MEMBER GANDHI: listen, thanks a lot. MS. LEEDS:

Okay. I really

MEMBER GANDHI:

Neal R. Gross & Co., Inc. 202-234-4433

Page 191 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Chairman. I just had a follow-up question regarding Board Member Gandhi's question as it related to -- I guess one of the stipulations in there, I think it was about the doors being open. MS. LEEDS: Yes. And you made a second. Thank you, Mr. Chair. CHAIRMAN BRODSKY: MEMBER JONES: Mr. Jones? appreciate it. MS. LEEDS: Thank you. Hold on one

MEMBER GANDHI:

Thank you, Mr.

MEMBER JONES:

comment or statement that your customers dictate what you do. MS. LEEDS: Yes. And I want to make

MEMBER JONES:

sure I'm clear on what you're really saying there. MS. LEEDS: Yes.

Neal R. Gross & Co., Inc. 202-234-4433

Page 192 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 definitely. MEMBER JONES: So if for example

you got a complaint from the community, you don't have a VA, you get a complaint from the community about noise and they're attributing it to the doors being open, would in that instance only what the customers want dictate what you do, or would you take other factors into consideration? MS. LEEDS: No, I would take other

factors into consideration. MEMBER JONES: Okay. Would that

apply not just to the doors being open, but in general? MS. LEEDS: Sure. MEMBER JONES: Okay. Because I Sure. Yes,

want to make sure I'm clear, because my understanding is that you've been a very good operator. But someone could argue that you've

been a good operator because you've had this VA in place and you've had to be. MS. LEEDS: Yes.

Neal R. Gross & Co., Inc. 202-234-4433

Page 193 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 follow up. MEMBER JONES: Without the VA in

place will you continue to be a good operator? MS. LEEDS: Yes. So just trying to

MEMBER JONES:

make sure I'm clear on your comment about the customers dictating. I don't think you meant

that the way I interpreted it, so I wanted to make sure I was clear in how you meant it. MS. LEEDS: Yes. Thank you.

MEMBER JONES:

Thank you, Mr. Chairman. CHAIRMAN BRODSKY: Mr. Kline? MR. KLINE: Thank you. CHAIRMAN BRODSKY: MR. HIBEY: Mr. Hibey? Mr. Jones covered my You're welcome.

When we were walking

through the Voluntary Agreement it was pointed out that there was (off microphone.) You

stated earlier that you have 15 seats inside, is that right? MS. LEEDS: Yes.

Neal R. Gross & Co., Inc. 202-234-4433

Page 194 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 MR. HIBEY: And the Voluntary

Agreement allows you to have 65 seats inside. Do you know that? MS. LEEDS: MR. HIBEY: Okay. So, you're not using

all of the seats that you could be using under the Voluntary Agreement, right? MS. LEEDS: Well, I don't want to

cram everybody in the way -- you know -MR. HIBEY: Voluntary Agreement -MS. LEEDS: -- I have as many Okay. So if the

seats as I think I should have given the comfort of the guests. MR. HIBEY: So, the Voluntary

Agreement provision on seats doesn't restrict you at all? MS. LEEDS: Well, it's only 10

seats and no, it doesn't restrict me in that particular space. MR. HIBEY: Okay. And you also

said that your kitchen closes at 10:00 on week Neal R. Gross & Co., Inc. 202-234-4433

Page 195 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 nights and 11:00 on the weekends, right? MS. LEEDS: MR. HIBEY: Yes. But the Voluntary

Agreement allows you to keep the kitchen open much later than that, right? MS. LEEDS: MR. HIBEY: An hour later, yes. So the Voluntary

Agreement again doesn't restrict your hours to keep the kitchen open? MS. LEEDS: That's right. MR. HIBEY: And just to clarify, No, not as it stands.

your outdoor time -- you're allowed to be open, the sidewalk caf‚, from April 1 to November 30th. Those are the dates, right? Yes. All right. When we

MS. LEEDS: MR. HIBEY:

walked through the Voluntary Agreement you stated that you didn't have a problem with a number of the provisions, is that right? MS. LEEDS: MR. HIBEY: What do you mean? Well, that if they

Neal R. Gross & Co., Inc. 202-234-4433

Page 196 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 irrelevant? MR. KLINE: The Board has ruled relevance. MS. LEEDS: the answer to that. CHAIRMAN BRODSKY: What makes it Well, you already know right. MR. HIBEY: Did you ever attempt weren't there you still wouldn't do what those provisions prohibit. MS. LEEDS: Most likely, that's

to negotiate an amendment with anyone on this Voluntary Agreement? MS. LEEDS: have a meeting, yes. Oh, we attempted to And we did have a

meeting with Robin and the ANC commissioners. MR. HIBEY: Did you attempt to

negotiate an amendment though? MR. KLINE: Objection as to

that that's not what we're here to talk about in terms of efforts to amend. Why is that

relevant to whether this establishment with or Neal R. Gross & Co., Inc. 202-234-4433

Page 197 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 irrelevant. Neal R. Gross & Co., Inc. 202-234-4433 relevance. MR. HIBEY: I think it's relevant. And I without the Voluntary Agreement would adversely impact the appropriateness criteria? CHAIRMAN BRODSKY: do you think about that? MR. HIBEY: I didn't hear his -Objected on Mr. Hibey, what

CHAIRMAN BRODSKY:

I think (A), (B) and (C) must be met.

don't know if the Board has fully decided that issue or not. (C), but -CHAIRMAN BRODSKY: certain, Mr. Hibey. weren't, trust me. We're pretty You told me this is only about

I'd let you know if we We're pretty certain. So,

he just objected to your question based on relevance. So do you have a reason why I

shouldn't accept his objection and ask you to go to the next question, something I can hang my hat on? MR. HIBEY: The question is

Page 198 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Thank you. CHAIRMAN BRODSKY: questions for you. Thank you, Mr. Hibey. I have a couple questions for you, ma'am, if I could. two. Well, maybe just one or I have a couple won't. MR. HIBEY: Okay. That's it. CHAIRMAN BRODSKY: Okay. So can

you ask your next question, please? MR. HIBEY: Yes. Thank you.

CHAIRMAN BRODSKY: MR. HIBEY:

If the Voluntary

Agreement is terminated are you saying that you're not going to operate your business in any way different? MS. LEEDS: It's possible that I

So, currently you have a capacity for 65

inside, right, and 20 outside? MS. LEEDS: Yes. So, and I'm

CHAIRMAN BRODSKY:

sorry I don't know the buildings that you're Neal R. Gross & Co., Inc. 202-234-4433

Page 199 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 and-eighty? be? Neal R. Gross & Co., Inc. 202-234-4433 in or sort of the size of them, but I assume, it sounds to me like you'd like the option to make your business bigger, right? Things are

good and people like your food, so you want to expand? MS. LEEDS: Yes. That's

CHAIRMAN BRODSKY:

admirable and that's good, because that means your 38 employees will hopefully go to 60 employees or whatever it is, right? for the District, good for sales tax. MS. LEEDS: Yes. So from your It's good

CHAIRMAN BRODSKY:

some-odd 65 seats, you have an idea of what you'd like to grow into? 600 seats? MS. LEEDS: No. Four-hundred? You want to open up

CHAIRMAN BRODSKY: MS. LEEDS:

Definitely not. Two-hundred-

CHAIRMAN BRODSKY:

Like kind of where do you want to

Page 200 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 300. CHAIRMAN BRODSKY: desire to get that big? MS. LEEDS: No. You have any outside. MS. LEEDS: Well, I'd like to be That's

-- you know, to get another 40 seats. probably what I'll do next door. CHAIRMAN BRODSKY: MS. LEEDS: Yes.

And then the 20

But also what I'm going to be doing

is have a private dining room, which is something that is -- a lot of my guests have asked for private parties, you know, for 20-25 people. CHAIRMAN BRODSKY: MS. LEEDS: Yes.

And I'm not able to

give that because of the limitation of my space. CHAIRMAN BRODSKY: Do you have any

idea how many seats there are at Lauriol Plaza on 18th Street? MS. LEEDS: I think there's like

Neal R. Gross & Co., Inc. 202-234-4433

Page 201 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 CHAIRMAN BRODSKY: Do you know

that you are compared to Lauriol Plaza for the potential damage that you could do? MS. LEEDS: Yes, I realize that. Do you have any

CHAIRMAN BRODSKY: desire to serve Mexican food? MS. LEEDS:

I do not. Do you have any

CHAIRMAN BRODSKY:

desire to be a 300-seat restaurant with a rooftop terrace? MS. LEEDS: I do not. I wonder why

CHAIRMAN BRODSKY:

they compared you to Lauriol Plaza? MS. LEEDS: I wonder myself. Was that just

CHAIRMAN BRODSKY: sensationalism?

I'm trying to figure out Like why didn't they

where it comes from.

compare to something with 120 seats if that's what you want to grow into? MS. LEEDS: I don't know. Any idea?

CHAIRMAN BRODSKY:

Believe me, I'm going to ask them when they Neal R. Gross & Co., Inc. 202-234-4433

Page 202 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Mr. Alberti? MEMBER ALBERTI: This was probably get on the witness stand. chance. Okay. That's it. Board Members? They'll have their

answered, but you know, you talked about expanding and having a private -- but my question actually was going to you, have you ever wished at any point that you could stay open later, like you had some private group that wanted to come in and rent your restaurant or rent space? I mean, has there

ever been that opportunity, or have you ever dreamed of doing that and wish you could do it? MS. LEEDS: I never had anybody

ask to stay later than I'm allowed to stay open. MEMBER ALBERTI: MS. LEEDS: No. Do you have the Okay.

MEMBER ALBERTI: hopes that you could do that?

Neal R. Gross & Co., Inc. 202-234-4433

Page 203 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 there -MEMBER ALBERTI: desires and vision. MS. LEEDS: You know, there's been -- and your MS. LEEDS: I mean, you know -I mean, where is

MEMBER ALBERTI:

your business plan in terms of doing that -MS. LEEDS: I don't know if

a lot of -- a lot of businesses are going on 14th Street. You know, there's a lot more

restaurants on 14th Street in the past year. They all stay open late and it's kind of -- i think it's taking away some of the business from the 17th Street corridor. And I'd like I'd like to

to capture some of that business.

give our local neighbors the option to have, you know, a nice place to go to have a drink late at night. So, you know, possibly -- you

know, like I said, if the market could bear it, I would do it, if there was the possibility. MEMBER ALBERTI: Thank you.

Neal R. Gross & Co., Inc. 202-234-4433

Page 204 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 it. MR. KLINE: Mr. Chairman, the only much, ma'am. MS. LEEDS: Thank you. We appreciate anything? MR. KLINE: Ms. Leeds, if your CHAIRMAN BRODSKY: Mr. Kline,

Voluntary Agreement is terminated, is that in any way going to change how you react to the neighborhood if there are issues raised with your operation? MS. LEEDS: MR. KLINE: question I have. No. That's the only

Thank you. Mr. Hibey?

CHAIRMAN BRODSKY: MR. HIBEY:

No further questions. Thank you very

CHAIRMAN BRODSKY:

CHAIRMAN BRODSKY:

other things we have is we would tender and ask the Board to take administrative notice of a proceeding before the Board that occurred on Wednesday, March 30th, 2005 in connection with Neal R. Gross & Co., Inc. 202-234-4433

Page 205 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 where? MR. KLINE: Yes, I can tell you the initial application and approval of this license. CHAIRMAN BRODSKY: you have any objection? MR. HIBEY: what this is. MR. KLINE: It's a transcript of Yes. I don't know Mr. Hibey, do

one of the initial proceedings related to the application and issuance of this license. MR. HIBEY: do with this? MR. KLINE: This has to do with What does it have to

the questions you asked about whether Ms. Leeds was forced to sign a Voluntary Agreement. MR. ZYBACH: Can you tell me

that it is principally pages 16 through 25. CHAIRMAN BRODSKY: Let's not burn

a lot of time, because it's part of -MR. HIBEY: Yes, and I object. I

Neal R. Gross & Co., Inc. 202-234-4433

Page 206 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 it -MR. KLINE: All right. And the don't know what this is or how it's -CHAIRMAN BRODSKY: We'll just take

other thing is that I would request that the Board take administrative notice of the fact that this establishment is in a C-2-B Zoning District and the provisions of Section 720 of the Zoning Regulations concerning community business center districts and Section 721 concerning uses as a matter of right in a C-2 Zone District. CHAIRMAN BRODSKY: Why would we

take administrative notice of that, Mr. Kline? MR. KLINE: Because it's the law

of the District of Columbia and we're talking about appropriateness and what's appropriate certainly relates to what's permissible under the Zoning Regulations, such as bowling alleys and catering establishments. CHAIRMAN BRODSKY: sort of a forgone conclusion? But isn't it Like they

Neal R. Gross & Co., Inc. 202-234-4433

Page 207 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 in context. CHAIRMAN BRODSKY: you, Mr. Kline. Neal R. Gross & Co., Inc. 202-234-4433 Yes. Thank Okay. sure why -MR. KLINE: True, but there are couldn't get a license from DCRA to operate a business in that they weren't zoned for it. MR. KLINE: True. I'm just not

CHAIRMAN BRODSKY:

different zoning classifications, as this Board knows. Under limited circumstances they

might be able to get a license in a residential zone. They might be able to get

a license in a C-1 Zone. CHAIRMAN BRODSKY: MR. KLINE: Yes.

The C-2 Zone, in terms

of what's permitted there, I think lends to the record the character of the neighborhood, what types of establishments are permitted. CHAIRMAN BRODSKY: So noted. MR. KLINE: And I think it puts it Oh, understood.

Page 208 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 MR. KLINE: Thank you. So noted. I

CHAIRMAN BRODSKY: appreciate that.

I appreciate that.

Your first witness, Mr. Hibey? MR. ZYBACH: Before we get to our

first witness, I'd just like to put on record and make a motion that the petition at this point be dismissed. There is no evidence the

Board could find that the termination will not have an adverse impact. The first two

witnesses, neither one of them have seen the Voluntary Agreement, so their testimony has nothing to do with whether or not the termination of the Voluntary Agreement will have an adverse impact. The last witness has

now testified that she doesn't know what the impact of increasing hours or increasing patrons or capacity -- she doesn't know what that impact would be. So, you have no

evidence to find that termination will not have an adverse impact. CHAIRMAN BRODSKY: Thank you.

Neal R. Gross & Co., Inc. 202-234-4433

Page 209 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 McGrath. record. MR. McGRATH: name is Jim McGrath. Neal R. Gross & Co., Inc. 202-234-4433 Good afternoon. My witness? MR. HIBEY: witness is Jim McGrath. CHAIRMAN BRODSKY: MR. McGRATH: Hello, sir. I think our first Your motion's been denied. but it's on the record. MR. HIBEY: Thank you. Your first We appreciate it,

CHAIRMAN BRODSKY:

Hello. Hello. Do you

CHAIRMAN BRODSKY:

affirm that the testimony you'll give is the truth, the whole truth and nothing but the truth? MR. McGRATH: I do. Thank you, sir.

CHAIRMAN BRODSKY: Please be seated.

Your witness, Mr. Hibey. MR. HIBEY: Good afternoon, Mr.

Please state your name for the

Page 210 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 lived there? MR. McGRATH: MR. HIBEY: Thirty-five years. And if you could MR. HIBEY: MR. McGRATH: Where do you live? I live at 1701

Massachusetts Avenue, Northwest. MR. HIBEY: How long have you

briefly tell the Board about your involvement in the community. MR. McGRATH: Yes. I happen to

head an organization called TENAC, which is the D.C. Tenant's Advocacy Coalition. We

represent all who live in rental housing in the city. We lobby for affordable housing.

We have a hotline for complaints, landlord/tenant complaints. We work on

homelessness issues related to evictees and also the homeless issue in general. And we

strongly support the shelter program in the city. MR. HIBEY: know Hank's Oyster Bar? Neal R. Gross & Co., Inc. 202-234-4433 Thank you. Do you

Page 211 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 this. CHAIRMAN BRODSKY: noted, Mr. Kline. It's well that strip. MR. KLINE: I have objection to MR. McGRATH: I know of it. And I

would beg the indulgence if I could make one comment on my impression of something which I consider to be very important. MR. HIBEY: MR. McGRATH: Go ahead. I have been in this I know it

community for a very long time.

exceedingly well, especially the area where the Licensee is located and all the adjacent businesses and bars around it. And I take

great exception to the terms "forced" and "singled out" for adverse attention. My

organization has overwhelming supported Voluntary Agreements and we did so because we viewed the abuses that were taking place -MR. KLINE: MR. McGRATH: Excuse me. -- on the bars in

I was letting it go for a

Neal R. Gross & Co., Inc. 202-234-4433

Page 212 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 object. little bit, but it's kind of -- yes, I was giving you a little bit of leeway, but I got to ask you to rein him in. MR. McGRATH: in, Chairman. CHAIRMAN BRODSKY: was letting you go. MR. HIBEY: Well, did you bring a No problem. I Thank you so much. I'm easily reined

statement that you wrote with you today? MR. McGRATH: I did. We prepared

a statement pursuant to a request that we would appear in support of Voluntary Agreements. MR. KLINE: Mr. Chairman, I would

This hearing is not about the

advisability or the desirability of Voluntary Agreements. This hearing is about whether the

Voluntary Agreement for Hank's Oyster Bar should be terminated. And certainly this

might be a nice statement to read at the Council, but I don't think it has any relevance here today. Neal R. Gross & Co., Inc. 202-234-4433

Page 213 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 CHAIRMAN BRODSKY: MR. HIBEY: Mr. Hibey?

It is relevant because

it has to do with the effect of termination of a Voluntary Agreement on a neighborhood, and that's what it addresses. CHAIRMAN BRODSKY: think about that, Mr. Kline? MR. KLINE: I'm looking at it and What do you

it looks to be, as Mr. McGrath I think accurately stated, a statement about Voluntary Agreements in general, not related to this establishment. I think, you know, in relevant

part Mr. McGrath says he has nothing against Hank's Oyster Bar and he understands they serve good food. CHAIRMAN BRODSKY: Mr. Hibey, if

your witness would like to testify about this particular establishment's Voluntary Agreement and the effect or non-effect of terminating this particular agreement, I'll all good with that. MR. HIBEY: Okay.

Neal R. Gross & Co., Inc. 202-234-4433

Page 214 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 in or -MR. KLINE: of relevance. MR. HIBEY: haven't even seen it. front of -CHAIRMAN BRODSKY: leave me speechless. MR. HIBEY: Very few people I didn't write it. I want to put it in I Object on the grounds that -MR. HIBEY: Can the statement come CHAIRMAN BRODSKY: could keep -MR. HIBEY: That's where we'll go. -- focused on So, if you

CHAIRMAN BRODSKY:

Ask these guys. It's his statement.

He wants to Board to see it. CHAIRMAN BRODSKY: MR. HIBEY: We will take --

It's not even mine. We can take

CHAIRMAN BRODSKY:

administrative notice of his statement. MR. McGRATH: I have a copy for

the Board if you would like that. Neal R. Gross & Co., Inc. 202-234-4433

Page 215 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 CHAIRMAN BRODSKY: MR. McGRATH: Fantastic.

Would you like -Yes. We'll

CHAIRMAN BRODSKY:

take administrative notice, but it is not part of the evidentiary record, let the record reflect. MR. HIBEY: Can I get into what I

was going to get into, which is have you seen the Voluntary Agreement in this case? MR. McGRATH: from start to finish. MR. HIBEY: Okay. Can you tell me Yes, I've read it

how termination of the Voluntary Agreement would affect you and the neighborhood? MR. McGRATH: Yes, I can tell you

right now that we believe the Voluntary Agreements preserve and protect the neighborhood, not only in the quality of life sense, but in the historic preservation sense. You know, we represent tenants, people that are rental housing, but we are very concerned about historic preservation in Neal R. Gross & Co., Inc. 202-234-4433

Page 216 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 the city. For 30 years I worked on historic And

preservation and landlord/tenant issues.

the ANC people can confirm that and the DCCA people can confirm that, and the Zoning Commission can confirm it, and the BZA can confirm it. And I want to say that statement, Mr. Counsel for the Applicant, is a very broad ranging statement. It goes beyond a mere It

academic discussion on the value of VAs.

goes to a discussion of the problems generated by excessive alcoholic beverage licensing in a very concentrated area; i.e., the 17th Street strip between P and R Streets, Northwest. Forgive my anger, but I'm getting really angry when I hear that kind of clamp down on my putative testimony here. I've been

here for three hours and I don't like the idea of being gag ruled, or just completely shut off by your suggestion. I'm Irish. I've

sorry, this is a little bit of a low fuse Neal R. Gross & Co., Inc. 202-234-4433

Page 217 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Chairman. general? topic here. Okay? CHAIRMAN BRODSKY: Are you

referring to Mr. Kline, were you just talking to, or are you talking to your own lawyer? MR. McGRATH: top of my head. CHAIRMAN BRODSKY: I got you. Just in Well, I I'm talking off the

I got you.

sympathize with you. for three hours, too.

I've been sitting here So, you know, I'd

rather be outside going for a nice bike ride or a run today, to be honest with you. unfortunately I have -MR. McGRATH: I wouldn't mind But

having an oyster at Hank's Oyster Bar. CHAIRMAN BRODSKY: But I will

tell, sir, that I have a certain responsibility to the process, so I got to do my job, too, while I'm up here. personal to you. MR. McGRATH: I respect that, Mr. So, it's not

I apologize if I got out of line. Neal R. Gross & Co., Inc. 202-234-4433

Page 218 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Alberti. MEMBER ALBERTI: Very CHAIRMAN BRODSKY: right to get passionate. MR. McGRATH: All right. Mr. Hibey? Everybody has a

CHAIRMAN BRODSKY: MR. HIBEY:

In yes or no,

terminating the Voluntary Agreement would adversely impact you and the neighborhood? Yes, or no? MR. McGRATH: MR. HIBEY: MR. KLINE: Yes.

That's it. I have no questions. Board? Yes, can I ask

CHAIRMAN BRODSKY: MEMBER ALBERTI: one quick question? CHAIRMAN BRODSKY:

You can, Mr.

specifically, and I mean very specifically, in what way would terminating the Voluntary Agreement adversely impact you? Be very

specific, otherwise I'm just going to stop you and your answer and we'll move on. Neal R. Gross & Co., Inc. 202-234-4433

Page 219 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 MR. McGRATH: Well, you know, Mr.

Board Member, I will do the best I can. Sometimes it works and sometimes it doesn't. I would simply say that terminating these Voluntary Agreements completely overlooks two key elements involved in these license applications. One is the

grant of enormous public space that makes them possible and enormously profitable. And the

second is that they're located in high-density residential zoning areas for the most part that are very seriously impacted by them. if you want to gloss those things and say they're irrelevant and you don't want to hear more about it, that's your choice. MEMBER ALBERTI: MR. McGRATH: Okay. And

But I think you're

cutting off a very important avenue of information if you do. MEMBER ALBERTI: gotten my answer. I think I have

Thank you, Mr. McGrath. Thank you, sir.

CHAIRMAN BRODSKY:

Neal R. Gross & Co., Inc. 202-234-4433

Page 220 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 lived there? MS. LATKA: I've been there since much. MR. HIBEY: Good afternoon. Would Any other -- thank, sir. you for being here today. taking your time. Mr. Hibey? MR. McGRATH: Mary Latka. Hello, ma'am. Thank

Thank you for

CHAIRMAN BRODSKY: Thank you for being here. right hand for me?

Will you raise your

Do you affirm that the

testimony you'll give is the truth, the whole truth and nothing but the truth? MS. LATKA: I will. Thank you so

CHAIRMAN BRODSKY:

you please state your name? MS. LATKA: MR. HIBEY: MS. LATKA: Avenue, Northwest. MR. HIBEY: And how long have you Mary Latka. And where do you live? 1701 Massachusetts

Neal R. Gross & Co., Inc. 202-234-4433

Page 221 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 you? MS. LATKA: MR. HIBEY: MR. KLINE: I have it. Can I see it? Mr. Chairman, I'm January 1960. MR. HIBEY: statement for the Board? MS. LATKA: MR. HIBEY: Yes, I did. Do you have it with Did you prepare a

going to object on the grounds of process. We're in a contested case hearing. I think

Mr. Hibey is aware of the provisions that govern contested case hearings, and certainly prepared statements are not one of those provisions. So if this is what we're going to

have, note my continuing objection and the Board can do with it what it wishes. CHAIRMAN BRODSKY: You're

objecting to what exactly, Mr. Kline? MR. KLINE: Written statements

being proffered as testimony. CHAIRMAN BRODSKY: As opposed to

Neal R. Gross & Co., Inc. 202-234-4433

Page 222 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 testimony? MR. KLINE: Yes. Understood.

CHAIRMAN BRODSKY: Well-noted objection.

Go ahead, Mr. Hibey. MR. HIBEY: Well, what I was going

to do next is have her read the statement or have the statement be submitted, and I was going to ask no further questions to move this process along. CHAIRMAN BRODSKY: Why don't you

just start with asking her questions and then she can recite things from her statement and to the answers to your questions? MR. HIBEY: That's fine. Go ahead.

CHAIRMAN BRODSKY: MR. HIBEY: faster this way.

I thought it was

Ms. Latka, you stated you've lived in the neighborhood for how long? MS. LATKA: MR. HIBEY: Since 1960. Okay. And where is

Neal R. Gross & Co., Inc. 202-234-4433

Page 223 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 blocks away. MR. HIBEY: Can you tell me how your home in relation to Hank's Oyster Bar? MS. LATKA: It's about three

Hank's Oyster Bar affects you and the neighborhood you live in? MS. LATKA: Well, I live, as I

said, three blocks away, so I can't say that it's noisy or anything. I'm far away, so you I guess it

know, I wouldn't know about that.

would be like other establishments of the same distance. MR. HIBEY: Okay. Have you seen

the Voluntary Agreement in this matter? MS. LATKA: I've read it. MR. HIBEY: Okay. Can you tell me Yes, I've seen it.

how termination of the Voluntary Agreement would adversely impact you or the neighborhood? MS. LATKA: Well, I think if it's

going to increase in size, there would be more Neal R. Gross & Co., Inc. 202-234-4433

Page 224 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 live. witness? CHAIRMAN BRODSKY: MR. KLINE: You may. noise and probably affect peace and order in the community. MR. HIBEY: Okay. Thank you. Mr. Kline?

CHAIRMAN BRODSKY: MR. KLINE:

May I approach the

Ms. Latka, I want to

you show you what's attached to the investigator's report as Exhibit 5. map of the neighborhood. It's a

Do you recognize

that as a map of your neighborhood? MS. LATKA: Let's see. If I find where I

I'm on Massachusetts Avenue

and 17th Street. CHAIRMAN BRODSKY: the bottom of that map, ma'am. MR. KLINE: Can you take my pen, It's right at

please, and circle approximately where you live? MS. LATKA: out the street. Neal R. Gross & Co., Inc. 202-234-4433 I'm trying to figure

Page 225 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Mallof. Neal R. Gross & Co., Inc. 202-234-4433 here. CHAIRMAN BRODSKY: Yes, you got it. MS. LATKA: would be 17th. MR. KLINE: Okay. Thank you. I This is 18th, so that There you go. CHAIRMAN BRODSKY: at the bottom. MS. LATKA: Yes, it would be down You should be

don't have any further questions of the witness. CHAIRMAN BRODSKY: from the Board? (No audible response.) CHAIRMAN BRODSKY: Your last name again? MS. LATKA: Latka, L-A-T-K-A. I'm a little I have one. Any questions

CHAIRMAN BRODSKY: confused, Ms. Latka. today to testify? MS. LATKA:

Who asked you to be here

Mr. Mallof, David

Page 226 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Church. MS. LATKA: And Q. There is no O blocks away. CHAIRMAN BRODSKY: this is like politics. of very local, you know? local. And, you know,

All this stuff is kind So this is sort of

And I'm looking at the map, which I

guess you have in front of you, and by my calculation I think you're six blocks away. MS. LATKA: No, that's not right. Four blocks?

CHAIRMAN BRODSKY: MS. LATKA:

I go to the Safeway, And

and it's only four short blocks away.

this place is two blocks south of Safeway. CHAIRMAN BRODSKY: MS. LATKA: Okay.

So, it's about three

That's Massachusetts Avenue and

17th is -- N Street, and then there's O Street and P Street. CHAIRMAN BRODSKY: P, Q, R,

Street because it's -- well, it is -- there is no -- it's not a through street. CHAIRMAN BRODSKY: Yes. Have you

Neal R. Gross & Co., Inc. 202-234-4433

Page 227 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Gandhi? MEMBER GANDHI: Do you believe away. CHAIRMAN BRODSKY: you very much. Thank you. Oh, Mr. Okay. Thank ever been awakened by noise coming out of Hank's Oyster Bar? MS. LATKA: No, I live too far

Any other questions?

that there would be an adverse effect without a Voluntary Agreement with Hank's? MS. LATKA: Well, it's -Do you think bad

MEMBER GANDHI:

things would happen if there was no VA? MS. LATKA: Will, it would be more

noise for the people, the residents who live in that area, I would think, having more people eating and drinking in the late hours of the night. MEMBER GANDHI: Well, they can

already eat, yes, so it's just the drinking part. It's not even the drinking part. Neal R. Gross & Co., Inc. 202-234-4433

Page 228 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 residents. MEMBER GANDHI: How about your They'd have to go through a process. MS. LATKA: I feel the Voluntary

Agreement is fine as it is for the neighborhood and the resident as is. my opinion. MEMBER GANDHI: The residents as That's

in including you, or just the immediate residents? MS. LATKA: Well, the immediate

people at 17th and P, you said, your building there? MS. LATKA: Pardon? How about the

MEMBER GANDHI:

people that live in your -- do you live in a high rise, or do you live -MS. LATKA: Yes. So how about the Do

MEMBER GANDHI:

people in your high rise at 17th and P? you think it will affect them? CHAIRMAN BRODSKY: Mass.

17th and

Neal R. Gross & Co., Inc. 202-234-4433

Page 229 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 wy? MS. LATKA: I feel that way, too. You do? and Mass. MS. LATKA: They would feel the Mass. MEMBER GANDHI: I'm sorry, 17th

same way I suppose because we're four blocks away. MEMBER GANDHI: understand the answer. MS. LATKA: They would probably So, I don't

feel that more people that are being seated in the restaurant will cause more noise and -MEMBER GANDHI: Do you feel that

MEMBER GANDHI: MS. LATKA:

I mean, I'm feeling

for the people, not for myself. MEMBER GANDHI: talking about you though. personally. No, I'm just How about you? You

You, Ms. Latka. MS. LATKA: Yes? That's what I'm

MEMBER GANDHI:

Neal R. Gross & Co., Inc. 202-234-4433

Page 230 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 questions? MR. KLINE: I don't have anything. Ms. Latka, fair enough. talking about. care about you. Forget about other people. I

Will you be affected if there

was no Voluntary Agreement? MS. LATKA: I guess personally I

won't, but as I said, I find the Voluntary Agreement is a good agreement. MEMBER GANDHI: Okay. Btu just in

general you find it's a good agreement? MS. LATKA: Yes. But for Hank's,

MEMBER GANDHI: how about for Hank's? Hank's today.

We're only here for

We're not here for all VAs.

Does that impact you? MS. LATKA: to answer that. MEMBER GANDHI: Okay. And that's I Well, I don't know how

Thank you very much.

appreciate you being a resident here. CHAIRMAN BRODSKY: Any other

CHAIRMAN BRODSKY:

Neal R. Gross & Co., Inc. 202-234-4433

Page 231 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 much. MR. HIBEY: Good afternoon. it. Mr. Hibey? MR. POOZESH: MEMBER JONES: Good afternoon. Good afternoon. Hello, sir. thank you for taking your time to be here today. MS. LATKA: Oh, you're welcome. We appreciate

CHAIRMAN BRODSKY:

CHAIRMAN BRODSKY:

Would you please raise your right hand for me? Thank you, sir. Do you affirm that testimony

you'll give is the truth, the whole truth and nothing but the truth? MR. POOZESH: I do. Thank you very

CHAIRMAN BRODSKY:

Please state your name for the record. MR. POOZESH: Poozesh, P-O-O-Z-E-S-H. My name is Abdi I live in 1620 Q

Street, just next door to Hank's. MR. HIBEY: When did you purchase

Neal R. Gross & Co., Inc. 202-234-4433

Page 232 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 the property? MR. POOZESH: MR. HIBEY: 2003. And there is one

property in between yours and Hank's? MR. POOZESH: At this point there

is one property between us, but she wants to expand to that location. problem for me comes in. MR. HIBEY: Well, have you read That's where the

the Voluntary Agreement in this case? MR. POOZESH: read it, but yes. MR. HIBEY: Do you understand that Not the way you guys

the Voluntary Agreement gives you protections? MR. POOZESH: MR. HIBEY: As a residence, yes. What protections does

the Voluntary Agreement give you? MR. POOZESH: Well, limited to

hours, noise, trash, hours of operation, being careful about opening very late at night and closing the doors indoors. MR. HIBEY: If the Voluntary

Neal R. Gross & Co., Inc. 202-234-4433

Page 233 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 door. Agreement is terminated how would you be impacted? MR. POOZESH: In my case very,

very badly I will be affected. MR. HIBEY: MR. POOZESH: And how so? Because I live next

I live adjacent to the proposed

building that she wants to -- at this point I have to say oyster bar is a really very good restaurant. I have to say that. Is very

nicely managed and very nicely operated to this point. things. I've had food with my family and No question

Very good restaurant.

about that.

Nobody is doing that. But expansion of these hours,

expansion to this next door to me, for me it's going to crucify me and my family. I have

worked very hard to make our building, to buy that building. I believe anybody here wants I don't

to be living next to a restaurant.

believe anybody wants to be in my shoes, in my family's. Neal R. Gross & Co., Inc. 202-234-4433

Page 234 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 location? MR. HIBEY: MR. POOZESH: Yes. No. But if they living? MR. POOZESH: I have three art MR. HIBEY: What do you do for a

gallery, framing art gallery, two of them located in D.C. against business. I'm pro-business. I'm not As

I don't object to that.

I said, Hank's is a very good restaurant. They're top quality. that. I admire her managing

I don't have any objection to this

point, even though at some point some of the, you know, patrons get a little bit later at night, try to have good time. in my living room. I can hear them

But at this point, well,

I knew where I'm living when this is fact of living in a very diverse location. MR. HIBEY: Do you think expansion

on the number of seats would have an impact on you and family in the neighborhood? MR. POOZESH: At this existing

Neal R. Gross & Co., Inc. 202-234-4433

Page 235 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 me. MR. HIBEY: MR. POOZESH: because I'm next door. same wall. How? It affects me We are sharing the wants to expand adjacent to my building, yes. MR. HIBEY: What about hours?

What if they had longer hours later into the night? MR. POOZESH: Of course affects

And only exception, you're talking

about all these businesses 17th Street, comparing them. None of them is -- all of All of them,

them, they have buffer zone.

they -- none of them is adjacent to a residential location. None of these

restaurant that you're talking about, Annie's, Fox, Trios, none of them sharing wall-to-wall with residence. location. This is a very exceptional

That's why my objection is to even I don't know what

her -- for her expansion.

the Board decide to do regarding volunteer, but if she wants to expand next to me, I guess Neal R. Gross & Co., Inc. 202-234-4433

Page 236 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 sir. okay. try to -CHAIRMAN BRODSKY: No, that's you have to get prepared to go Supreme Court. I don't believe Mr. Kline can take you to court, but I guess you have to be very expensive. MR. HIBEY: MR. POOZESH: I don't have -I'm sorry I have to

Just, you know, we're trying to stay on

the clock. Mr. Kline? MR. KLINE: Yes, good afternoon,

So your objection is really to the

expansion, correct? MR. HIBEY: MR. POOZESH: Objection. Both of them, At

expansion and the Voluntary Agreement. this point as I say it's a very good restaurant. bother me. CHAIRMAN BRODSKY: hold on one second? They close 11:00.

It doesn't

Sir, can you

Can you hold on?

Neal R. Gross & Co., Inc. 202-234-4433

Page 237 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 I totally missed it because I was trying to figure something out with Mr. Gandhi. is? MR. HIBEY: answered the question. I withdraw that. It's fine. Okay. He So I apologize. So, your objection

CHAIRMAN BRODSKY: MR. HIBEY:

I'm sorry. That's okay.

CHAIRMAN BRODSKY: All right. cross-examine. MR. KLINE:

Mr. Kline, you may

So as the restaurant

is currently configured it's not directly adjacent to your house, correct? MR. POOZESH: MR. KLINE: No. All right. And as

you've testified your concern is that it will expand into the building next door, correct? MR. POOZESH: MR. KLINE: Exactly. All right. That

really doesn't have anything to do with termination of the Voluntary Agreement, does Neal R. Gross & Co., Inc. 202-234-4433

Page 238 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 question. MR. POOZESH: MR. KLINE: Okay. Again, we've got a point -MR. KLINE: Wait, let me finish my it? MR. POOZESH: Of course at this

court reporter and it will be just a lot clearer if this has to to the court of appeals. MR. POOZESH: The only thing I

want to be as -- the only thing I want to be as elaborate as other witnesses. MR. KLINE: MR. POOZESH: I'm sorry? Just wanted to be Go ahead.

also elaborate as your witnesses, to let me talk as much as well. MR. KLINE: Go ahead. You're still welcome

to talk and answer my questions. MR. POOZESH: ahead ask the question. MR. KLINE: All right. Now, this Please go ahead. Go

Neal R. Gross & Co., Inc. 202-234-4433

Page 239 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 that? MR. POOZESH: MR. KLINE: Yes. All right. Would it premises is zoned C-2-B, correct? MR. POOZESH: I don't know about

this C-2-B, but is a commercial building yes. MR. KLINE: You don't know about

be okay with you if a billiard parlor opened next to you? MR. POOZESH: MR. KLINE: What is a -A pool hall. Would

you be okay with a pool hall opening next to you? MR. POOZESH: 10:00, 11:00 it's okay. MR. KLINE: All right. You're If they close at

aware, are you not, if they didn't have an alcohol license there wouldn't be any basis to order them to close early, aren't you? know that? MR. POOZESH: As long as alcohol You

it's -- that's coming in, no, I don't have any Neal R. Gross & Co., Inc. 202-234-4433

Page 240 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 questions. problems. It would be a very good flower

shop, the bakery, any kind of -MR. KLINE: All right. The fact

of the matter is you've never had any problem with Hank's Oyster Bar, have you? MR. POOZESH: MR. KLINE: Thank you. CHAIRMAN BRODSKY: Member questions? MEMBER ALBERTI: you, Mr. Chairman. Mr. Poozesh, just for the record, I believe it's a C-2-A, and this is what we have in our records, the zoning for this area. MR. KLINE: Mine says C-2-B. Well, I'm not The point is it is Yes, I do. Thank Any Board At this point, no. Okay. No further

MEMBER ALBERTI: going to argue that point. a commercial area.

I guess my question really is when you moved in has the type of zoning for this area changed since you moved in? Neal R. Gross & Co., Inc. 202-234-4433

Page 241 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 question? MEMBER ALBERTI: Okay. Yes, I'm a changed. commercial. MR. POOZESH: This building wasn't

This building happened to be

changed to commercial about maybe two years ago. MEMBER ALBERTI: The zoning

changed or the building changed? MR. POOZESH: For this building Oyster bar

that is adjacent to my building. is 1624. My building is 1620. MEMBER ALBERTI:

The zoning for

your entire square, for your entire block, the zoning that the District allows, has that changed since you bought it? MR. POOZESH: Yes. Okay.

MEMBER ALBERTI: MR. POOZESH:

One building has

The building adjacent to my building

has changed to commercial after I moved in. MEMBER ALBERTI: MR. POOZESH: Okay.

Am I answering your

Neal R. Gross & Co., Inc. 202-234-4433

Page 242 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 no. little confused by it, but I'll accept that answer. I am going to a question sort of in the line that was asked to you earlier. If

there was like an all-night diner that didn't have a liquor license went in next door, would you object to that? MR. POOZESH: If they close early,

If they close like 10:00, no. MEMBER ALBERTI: Okay. So, is it

fair to say that it's not the fact that they're serving alcohol, it's the hours in which they're operating that's a problem for you? MR. POOZESH: The hours. But as I

say at the beginning, at this location they are one building away from me and they close always 11:00 at night. MEMBER ALBERTI: not the fact that -MR. POOZESH: noise at this point. Neal R. Gross & Co., Inc. 202-234-4433 (Off microphone) the Okay. But it's

Page 243 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 just -MEMBER ALBERTI: have my answer. Okay. I think I MEMBER ALBERTI: But it's not the

fact that they're serving alcohol? MR. POOZESH: makes you louder. Of course alcohol

I don't know, if you --

it's very -- when people drink alcohol -MEMBER ALBERTI: MR. POOZESH: No, I have that.

-- they get louder,

they try -- they start joking. MEMBER ALBERTI: But you would

object even though if they weren't serving alcohol, if they were going to be opening until 12:00? MR. POOZESH: Most in that time

you call police, you say these people are making noise. MEMBER ALBERTI: MR. POOZESH: Okay.

I mean, noise is

Thank you very much. You're welcome.

CHAIRMAN BRODSKY: Thank you very much.

Neal R. Gross & Co., Inc. 202-234-4433

Page 244 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 that is -MR. POOZESH: Of course happens. Any other recross or redirect? MEMBER JONES: question, yes. CHAIRMAN BRODSKY: MEMBER JONES: Mr. Jones? Just one quick

I think during your

testimony you mentioned that if the expansion occurred it would crucify you and your family. MR. POOZESH: family because -MEMBER JONES: MR. POOZESH: How would it -Property value in my I can't sell It crucify me and my

building is going to go down. that building anymore. and just suck it up. MEMBER JONES:

I have to live there

And you believe

You like to live next to a restaurant, or buy -MEMBER JONES: I have no problem

living next to a restaurant, none whatsoever. MR. POOZESH: But you don't want

Neal R. Gross & Co., Inc. 202-234-4433

Page 245 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Chair. I think in a few weeks there's going to be a hearing on a substantial change for Hank's as well. that? Neal R. Gross & Co., Inc. 202-234-4433 Are you familiar with much. Mr. Gandhi? MEMBER GANDHI: Thank you, Mr. to go buy a building that's -MEMBER JONES: I actually own

property that is next to a restaurant, so I'd caution you to make just general statements about that. MR. POOZESH: want to sell it -CHAIRMAN BRODSKY: Sir, you're not And then when you

supposed to be asking a Board Member a question like that. appreciate it. Mr. Jones, any other questions? MEMBER JONES: No, sir. Thank you very Thank you so much. I

CHAIRMAN BRODSKY:

Page 246 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 tell you. Okay. MR. POOZESH: I work really eight I have MR. POOZESH: MEMBER GANDHI: I haven't heard. You don't know?

days a week to maintain my expenses. no -MEMBER GANDHI: Okay.

Just so you

know, there's going to be another hearing because they applied to go next door as well, and that's -MR. POOZESH: inform of it, yes. MEMBER GANDHI: I'm sure they'll I hope I'll be

But I really want to focus in on

the Voluntary Agreement, because that's why we're here. MR. POOZESH: MEMBER GANDHI: Okay. Okay? We went

over the capacity part of it and the hours. But, let's say there was no Voluntary Agreement. Do you think -- as it stands now.

Let's forget about the expansion for a second. Neal R. Gross & Co., Inc. 202-234-4433

Page 247 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 house. MEMBER GANDHI: family house? Neal R. Gross & Co., Inc. 202-234-4433 It's a singleyou how? MEMBER GANDHI: Well, I think you Okay? MR. POOZESH: MEMBER GANDHI: another hearing coming up. Yes. Because that's But just as it

relates right now, do you feel if there was no Voluntary Agreement that it would affect you? MR. POOZESH: MEMBER GANDHI: MR. POOZESH: Yes. Okay. And --

You want me to tell

may have mentioned how, but -MR. POOZESH: They open late at

night I can't go to sleep, if like 1:00, 2:00, of course. MEMBER GANDHI: Okay. And are

there any other residences, or are you in a unique position? MR. POOZESH: Is a single-family

Page 248 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 businesses? MR. POOZESH: No. In my south -MR. POOZESH: MEMBER GANDHI: Yes. And you do share a

wall, or you don't share a wall? MR. POOZESH: At this point, no.

At this point there is a building between us. But she wants to expand to that location. MEMBER GANDHI: on the other side of you? MR. POOZESH: attached to my building. MEMBER GANDHI: MR. POOZESH: Residential? Residential, yes. Another row house Right. And what's

After me everything is residential. MEMBER GANDHI: everything is residential? MR. POOZESH: MEMBER GANDHI: Yes. There's no other After you

I'm sorry, in my east, northeast part of the building everything is residential. MEMBER GANDHI: Okay. Thank you.

Neal R. Gross & Co., Inc. 202-234-4433

Page 249 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Mallof. Be seated. MR. MALLOF: MR. HIBEY: Thank you. Good afternoon, Mr. I appreciate it. CHAIRMAN BRODSKY: any other questions? Board Members,

Gentlemen?

(No audible response.) CHAIRMAN BRODSKY: Thank you very We

much, sir, for being here today. appreciate it. MR. POOZESH: MR. POOZESH:

You're welcome. I call David Mallof. Please raise

CHAIRMAN BRODSKY: your right hand.

Do you affirm that the

testimony you give is the truth, the whole truth, nothing but the truth? MR. MALLOF: I do. Thank you, sir.

CHAIRMAN BRODSKY:

Will you please state your name? MR. MALLOF: Yes, I'm David J.

Mallof, M-A-L-L-O-F. of the District.

I'm a 27-year resident

I've lived in Dupont Circle

Neal R. Gross & Co., Inc. 202-234-4433

Page 250 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 all that time, 1332 22nd Street at the corner of O, across from the McDonald's dumpster, at 1624 Corcoran for about five years, and then since 1993 at 1711 Q Street, about 280 feet from Hank's. And I'm proud to be a resident here and proud to see Dupont Circle behind the Board Members every time I come in here. That's the one shining moment. We all love

the city, I might add, and we all want it to grow. There may be some differences of

opinion on how it should happen, but only in slight measure. MR. HIBEY: Mr. Mallof, did you

sign a Voluntary Agreement with the Licensee? MR. MALLOF: MR. HIBEY: Yes. And are you testifying

today on behalf of the group of signatories to the Voluntary Agreement? MR. MALLOF: MR. HIBEY: behalf, correct? Neal R. Gross & Co., Inc. 202-234-4433 Yes. And on your own

Page 251 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 MR. MALLOF: MR. HIBEY: Yes. Okay. There was just

some discussion in prior testimony about the -CHAIRMAN BRODSKY: me just ask one quick question. MR. HIBEY: Yes. Is your witness Mr. Hibey, let

CHAIRMAN BRODSKY:

testifying on behalf of the -- I don't have the signatory page here. You've got six

signatories I think to this VA, of this group? MR. HIBEY: Yes. So, is it your

CHAIRMAN BRODSKY:

witness' claim that he's testifying on behalf of all of those people? MR. MALLOF: power of attorney. CHAIRMAN BRODSKY: I'm not asking you. I'm sorry, sir, Oh, yes. I have

I'm asking your attorney. I was going to ask

MR. HIBEY:

him, but I think the answer's yes. CHAIRMAN BRODSKY: Okay. Do you

Neal R. Gross & Co., Inc. 202-234-4433

Page 252 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 checking. the gavel.) MR. MALLOF: MR. HIBEY: witness directly. CHAIRMAN BRODSKY: want to ask the witness. It's your case. MR. HIBEY: Yes, it is my belief I didn't really I'm sorry. If you could ask the have a letter that signifies that he's the representative of that group in some fashion? MR. HIBEY: MR. MALLOF: original protest letter. (Whereupon, the Chairman pounded I think it's on -Absolutely. The

I'm asking you.

that he is a designated representative. CHAIRMAN BRODSKY: I'm just

I want to make sure if he's out

there speaking on behalf of other people that you've got something that says he is. don't know. I just

I mean, I see his signature here,

but I didn't know he was speaking on behalf of one, two, three, four -- of all six of these Neal R. Gross & Co., Inc. 202-234-4433

Page 253 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 people, and if they've been contacted and they actually know that he's speaking on their behalf. MR. KLINE: Mr. Chairman, if I

may, this is a contested case hearing, which means that we're here to hear evidence. Mr.

Mallof obviously can only testify as to what he knows. His opinions, unless he's qualified

as an expert, and I haven't heard that that's what's going to happen, are completely irrelevant. So whether he's testifying for

other people, whatever that means, he can testify as to his own knowledge, and I'm not sure it's terribly relevant in terms of who it is that he thinks he is or is not testifying for. CHAIRMAN BRODSKY: Okay. Then if

I'm making a mountain out of a molehill, I certainly don't want to do that. Go ahead, Mr. Hibey. MR. HIBEY: Mr. Mallof, can you

describe for the Board how the operation of Neal R. Gross & Co., Inc. 202-234-4433

Page 254 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Hank's Oyster Bar impacts you and the neighborhood? MR. MALLOF: close to my house. Well, Hank's is very

We sleep in the front of

the building, as most of the other -- as many of the other residents along Q Street do. It's the main corridor between the vital corner of 17th and Q and the Metro. A lot of

foot traffic, a lot of people circling for parking. And as Mr. Zybach mentioned, 17th

Street is known as a place to party late at night. So, I mean, I love the neighborhood.

We love living there, but we are directly impacted being 280 feet away. MR. HIBEY: And is that why you

protested in 2005 Hank's application for -well, transfer of license? MR. MALLOF: process is broken. Well, forgive me, our

Title 25 needs repair.

This talented board I would hope going forward would promulgate its own administrative law so that we wouldn't have to protest, but we can Neal R. Gross & Co., Inc. 202-234-4433

Page 255 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 get into if you like. The elements of the

Voluntary Agreement in large measure were negotiated because 19 of them don't have any administrative regs by ABRA. And as a lay

person, we've come to appreciate that if you have any concerns about an establishment, you've got to file the letter, appear at a roll call, appear at a status, go to mediation. And it is -- I call it the MOnty

Hall, Let's Make a Deal process, when I would just prefer to look to Board regs on many of these dimensions. So, yes, we filed because that's the way things work in the District of Columbia and I feel personally as a matter of business process the Board could serve all of us better, licensees and taxpayers, by promulgating administrative law rather than going through what is really a Voluntary Agreement-centric process. And now today

we're criticizing it, and it's sort of like -I really don't feel we can have it both ways. Neal R. Gross & Co., Inc. 202-234-4433

Page 256 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 much. MR. HIBEY: Do you have a copy of So, I would reform it, but yes, we file because we have no other choice. In addition, the ANC doesn't step up and they don't step up for a variety of reasons. In this case, the ANC -CHAIRMAN BRODSKY: MR. MALLOF: look the other way. CHAIRMAN BRODSKY: Can I ask you Mr. Hibey?

-- the ANC chose to

to keep your witness a little bit more on track? MR. MALLOF: Thank you. Thank you so

CHAIRMAN BRODSKY:

the Voluntary Agreement with you? MR. MALLOF: MR. HIBEY: Oh, I do. Okay. I'd like you to

walk through the Voluntary Agreement and describe to the Board the provisions that provide you with protection and how you would be impacted if the Voluntary Agreement was Neal R. Gross & Co., Inc. 202-234-4433

Page 257 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 late. terminated. MR. MALLOF: Sir, it's getting

Would you have an interest in I'll

submitting the document I've prepared? do whatever you like.

There are 19 provisions

of the Voluntary Agreement that are not addressed by Board regulations, and there are 21 that I itemized here that are contained within the Voluntary Agreement. These are

things that we had to do because no one else does them and no one's ever criticized them. Most of these aren't reasonable as a matter of condition for the privilege of ABC licensing. ABC licensing is premised on not the positive ambience impacts, but the possible negative impacts. That's why the licenses exist as So, we have a list of 21 and I

public goods.

hope you will submit it to the Board here. That includes most importantly, I might add, public space, the use of public property and -CHAIRMAN BRODSKY: Mr. Hibey?

Neal R. Gross & Co., Inc. 202-234-4433

Page 258 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 that. CHAIRMAN BRODSKY: your witness a question? MR. KLINE: Objection. And I have no I'm Can you ask MR. MALLOF: -- the dimensions of

CHAIRMAN BRODSKY:

idea where your witness is right now.

telling you, if you polled the Board right now, none of these guys have a single clue where this guy's going. So if you could get

your witness to answer the question that's asked. If not, then we'll just dismiss him

and we'll move on, because I'm not going to spin wheels like this. MR. HIBEY: MR. MALLOF: MR. HIBEY: only, please. MR. MALLOF: MR. HIBEY: Yes. Okay. Look at Section Mr. Mallof? Yes? Answer my questions

2 of the Voluntary Agreement. MR. MALLOF: Yes.

Neal R. Gross & Co., Inc. 202-234-4433

Page 259 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 MR. HIBEY: Does that provide you

with any protection, yes or no? MR. MALLOF: MR. HIBEY: MR. MALLOF: Yes, it does. How so? The Licensee is

licensed for 65 seats inside and she's admitted here that she's only using 50, so we both have room to grow. MR. HIBEY: Okay. And if the

Voluntary Agreement is terminated how would you be impacted? MR. MALLOF: If the Voluntary

Agreement is terminated, I believe that on that dimension she would apply for a substantial change and we would go through a process regarding expansion. MR. HIBEY: adversely impacted? MR. MALLOF: We would be adversely How would you be

impacted on the sidewalk caf‚ side of Section 2 because I don't really quite know what the seats authorized would be. Neal R. Gross & Co., Inc. 202-234-4433

Page 260 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 MR. HIBEY: Okay. Section 3 of

the Voluntary Agreement, I want to direct your attention to that. hours. It deals with the interior

Do you believe that Section 3 provides

you with protections? MR. MALLOF: Absolutely. We

agreed to midnight and 1:00 a.m. on the inside for hours. MR. HIBEY: Okay. If the

Voluntary Agreement is terminated how would you be adversely affected? MR. MALLOF: It's adverse. If

it's terminated then it's quite possible the hours would be later and we would have to go back into the cycle of protesting. MR. HIBEY: Okay. Is the same

true for every section in the Voluntary Agreement? MR. MALLOF: MR. HIBEY: Just about. Yes.

Is it your testimony

that the Voluntary Agreement, each section provides you and the neighborhood with some Neal R. Gross & Co., Inc. 202-234-4433

Page 261 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 protection? MR. MALLOF: Significantly, yes,

in the absence of Board regs. MR. HIBEY: And if the Voluntary

Agreement was terminated you will not have those protections? MR. MALLOF: Nineteen of them,

correct, out of 21 in the Voluntary Agreement. MR. HIBEY: Okay. Could you just

CHAIRMAN BRODSKY:

point to one, Mr. Mallof, just so I can see what you're talking about here? You said

there's something that's not in the regulations that we potentially should have and that's why it's in here. to one? MR. MALLOF: Yes, Section 2, Could you point

public space seats, an agreement to synchronize them with DDoT. It's consistent

in the District of Columbia that people say, well, my public space permits more seats than the ABC and they argue that they ought to have Neal R. Gross & Co., Inc. 202-234-4433

Page 262 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 more seats. We agreed specifically that that

would be synchronized with the public space for consistency. I feel we're almost doing

the job of the District. Public space hours. The Applicant

applied for 2:00 a.m. and 3:00 a.m. outside. We had to claw that back and negotiate it as a significant protection. CHAIRMAN BRODSKY: Well, no, You're

you're not answering my question.

getting a little off track of my question. But what you're saying is there's things that are in here that are in here because they don't really get addressed by ABRA in any other way? MR. MALLOF: Yes, plus -What I'm trying

CHAIRMAN BRODSKY:

to get a handle on, in addition to No. 2, which I mean that's sort of the C of O, right? That's DCRA, I think. right now? What is your C of O for What's your

How many seats?

capacity on your C of O? Neal R. Gross & Co., Inc. 202-234-4433

Page 263 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 wanted one. MR. MALLOF: Okay. list? CHAIRMAN BRODSKY: No, I just MS. LEEDS: I think it's for -- it I think it's

definitely for more than 65. like 75. CHAIRMAN BRODSKY:

Okay.

Well, in

your whole establishment your C of O allows you to have how many folks, do you know? MS. LEEDS: The total? Yes.

CHAIRMAN BRODSKY: MS. LEEDS: Eighty.

CHAIRMAN BRODSKY: agreed to 65.

So, you've

So, you've agreed to less than I got you.

what you're allowed to by law. Okay. All right. Okay. the diversion. MR. HIBEY: wasn't very clear. MR. MALLOF:

Mr. Hibey, thank you for

I'm sorry, sir.

I

May I finish the

Neal R. Gross & Co., Inc. 202-234-4433

Page 264 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 question. CHAIRMAN BRODSKY: Yes, that's not That space -MR. KLINE: Objection. There's no you. CHAIRMAN BRODSKY: I just wanted

to see what you're talking about. MR. MALLOF: Okay. Okay. Thank

CHAIRMAN BRODSKY: Mr. Hibey? MR. HIBEY:

Well, I think the

witness would like to provide a few more examples. MR. MALLOF: If I may, public

really relevant, to be honest with you. was a curious question. Go ahead, Mr. Hibey. MR. HIBEY:

Now, earlier there was Was

testimony from one of our witnesses.

there a misstatement that you wanted to address? MR. MALLOF: MR. KLINE: Well, I mean -Objection as to the

Neal R. Gross & Co., Inc. 202-234-4433

Page 265 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 flexibility. CHAIRMAN BRODSKY: MR. MALLOF: Mr. Mallof? flexibility. CHAIRMAN BRODSKY: So, just form of the question. CHAIRMAN BRODSKY: Try to ask it a

little bit differently, Mr. Hibey, because I'm sure there's about three hours of stuff that he doesn't really agree with. MR. MALLOF: Ms. Leeds'

restate the question if you can. MR. MALLOF: Well, Ms. Leeds'

Oh, I'm sorry. You got to let That's cool. I

CHAIRMAN BRODSKY: me run my proceeding, right?

mean, I'm just trying to do the right thing here. So, Mr. Hibey, you can ask the question if you just restate the way you're asking it so it's a little bit clearer and not so open-ended and so kind of obtuse. MR. HIBEY: I understand.

Neal R. Gross & Co., Inc. 202-234-4433

Page 266 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 hours? Mr. Mallof. CHAIRMAN BRODSKY: MR. HIBEY: questions right now. CHAIRMAN BRODSKY: MR. KLINE: Mr. Kline? Yes.

I don't have any other

Yes, good afternoon,

You indicated, you've testified

I think repeatedly that there are 19 provisions in the Voluntary Agreement that are not addressed by the regulations, correct? MR. MALLOF: MR. KLINE: hours, correct? MR. MALLOF: MR. KLINE: No. One of those is not I believe so. And one of those is

Didn't you cite to Section 2 of the

Voluntary Agreement? MR. MALLOF: MR. KLINE: MR. MALLOF: MR. KLINE: Public space hours. Public space hours? Correct, sir. All right. And your

concern there was that they agree, correct? That the hours that are on the public space Neal R. Gross & Co., Inc. 202-234-4433

Page 267 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 not correct. permit agree with the hours that are permitted by ABRA, correct? MR. MALLOF: No, we -- no, it's We You

We did two things.

negotiated less than you applied for. applied for 2:00 and 3:00 a.m.

And now that

may be established as a matter of the license. I don't know where that might go. And then I

secondly, that that be made synchronous.

trust that Ms. Leeds has gone to DDoT and made her hours synchronous with the public space permit. MR. KLINE: So that is one of your

provisions that they synchronize, correct? MR. MALLOF: MR. KLINE: Yes. But you're aware, are

you not, that the limitation that ABRA put on public space seating and service would govern, aren't you? MR. MALLOF: MR. KLINE: MR. MALLOF: Yes, they would. Okay. But we needed to

Neal R. Gross & Co., Inc. 202-234-4433

Page 268 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 matters. negotiate that. MR. KLINE: Well, let's be clear.

If ABRA sets hours for outside seating, then those hours govern, correct? MR. MALLOF: MR. KLINE: Correct. And it really doesn't

matter whether it synchronizes with DDoT has, does it? MR. MALLOF: MR. KLINE: Perhaps not to you. Okay. Well, my It's

question is does it matter? enforceable -MR. MALLOF:

To the citizens it

It matters that permitting be

consistent and congruent. MR. KLINE: MR. MALLOF: MR. KLINE: We all hope for that. Thank you. Now, you also The interior

testified in terms of capacity.

capacity is not addressed by the regulations and had to be addressed by the Voluntary Agreement, correct? Neal R. Gross & Co., Inc. 202-234-4433

Page 269 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 MR. MALLOF: MR. KLINE: Correct. Isn't the interior

capacity governed by the Certificate of Occupancy? MR. MALLOF: Not at all. My

understanding is the ABRA process governs the seating based on the appropriateness and the likely impacts, which are separate from C of O for any other purpose. MR. KLINE: a misunderstanding here. MR. MALLOF: My understanding of Well, we may just have

the way ABRA is chartered is to look at the impacts that are ABRA-related and to determine that appropriateness. MR. KLINE: MR. MALLOF: with the C of O. MR. KLINE: All right. So it's Okay. It has nothing to do

your position that ABRA could set a lower number of seats than it's allowed under the Certificate of Occupancy? Neal R. Gross & Co., Inc. 202-234-4433

Page 270 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 don't know. question. corner. MR. KLINE: That's not my feet? MR. MALLOF: MR. KLINE: I think so. That's twenty feet shy It's almost MR. MALLOF: MR. KLINE: MR. MALLOF: context of the situation. MR. KLINE: Absolutely. Okay. Depending upon the Absolutely. Now you

All right.

indicated that this place is very close to your house, correct? MR. MALLOF: MR. KLINE: Yes, sir. Two-hundred-and-eighty

of a football field, isn't it? 100 yards away, isn't it? MR. MALLOF:

I can hear the street

My question to you is it's almost

a football field away, isn't it? MR. MALLOF: Yes. Might be 250. I

Whatever. And the fact of the

MR. KLINE:

Neal R. Gross & Co., Inc. 202-234-4433

Page 271 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 matter is this establishment has never disturbed you, has it? MR. MALLOF: I don't know that. I

don't card people at 2:00 in the morning. MR. KLINE: So to your knowledge

this establishment has never disturbed you, has it? MR. MALLOF: MR. KLINE: I can't say that. Do you have knowledge

that it has disturbed you? MR. MALLOF: impacts at 2:00 a.m. I cannot parse the

Neighbors are awakened

every evening just about at 2:00 a.m. during statutory closing time and 3:00 a.m. on weekends. I can't parse for you the And the

establishment from which people come.

volume does kick up at about 10:00 p.m., so the public space impacts are very relevant for all of Dupont Circle and for all of the licensed establishments. MR. KLINE: Okay. You haven't

answered my question, and perhaps you won't, Neal R. Gross & Co., Inc. 202-234-4433

Page 272 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 a.m. but my question is you don't have any knowledge that this establishment has disturbed you in any way, do you? MR. MALLOF: MR. KLINE: No, not this -- no. Okay. And in fact two

and three represents the hours that other establishments close, not this establishment, doesn't it? MR. MALLOF: MR. KLINE: Two and three? 2:00 a.m. and 3:00

You testified that there was noise at

2:00 a.m. and 3:00 a.m. MR. MALLOF: That's correct. And

staggered closing times are good in a residential neighborhood so that some -MR. KLINE: Move to strike.

Totally unresponsive to my question. MR. MALLOF: Fine. Agreed.

CHAIRMAN BRODSKY: MR. KLINE:

So, whatever noise you

have heard at 2:00 and 3:00 likely is not coming from Hank's Oyster Bar, correct? Neal R. Gross & Co., Inc. 202-234-4433

Page 273 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 midnight. MR. MALLOF: extra hours, yes. Yes. She has two Mr. Gandhi? MEMBER GANDHI: taking the time today. Mallof. Thank you for Not correct. MR. MALLOF: I don't know that.

I don't know that. MR. KLINE: Okay. Fair enough. I

don't have any further questions of the witness. CHAIRMAN BRODSKY: Board Members?

Appreciate it, Mr.

There was testimony saying that And so

Hank's closes I think around midnight.

I'm just curious if you're hearing a lot of these noises from other establishments. MR. MALLOF: I believe Ms. Leeds

testified 10:00 p.m. weekdays, 11:00 p.m. weekends. MEMBER GANDHI: Yes, before

I can't say where the

noises come from, and I don't want to sound like a fuddy-duddy, but there are impacts for Neal R. Gross & Co., Inc. 202-234-4433

Page 274 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 all the neighbors. MEMBER GANDHI: So you're saying

the termination of this Voluntary Agreement would adversely affect your peace, order, quiet? MR. MALLOF: part of the 19 pieces. MEMBER GANDHI: MR. MALLOF: Yes or no? Yes. Yes, along as are a

Yes.

MEMBER GANDHI:

And even with the

substantial change process that the Board has and that the code calls for when the Board determines that there is a substantial change, you believe that you need that extra protection in the Voluntary Agreement as well, correct? expansion. I'm not even talking about the I'm just talking about Hank's

right now as it currently stands. MR. MALLOF: Well, sir, yes,

because the ANC only voted on seats when there are 19 other dimensions of the Voluntary Agreement that would go away. Yes.

Neal R. Gross & Co., Inc. 202-234-4433

Page 275 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 MEMBER GANDHI: Okay. And you're

talking about the outdoor hours and things of that sort? MR. MALLOF: Yes. Tell me how you

MEMBER GANDHI:

believe that if -- let's say, for example, this agreement was terminated and at that point Hank's applied for later hours and it was approved for later hours, how you feel that other establishments on the same block which have later hours as well, 2:00 and 3:00 in the morning, how you feel that it's okay for those establishments to have those later hours and not Hank's. MR. MALLOF: Well, sir, this is an

issue of equities and unfortunately Ms. Leeds is the last one in here. The death by a

thousand cuts approach is to argue that I get what the guy who's been here 20 years gets. And unfortunately the Board has consistently ruled that we have over-concentration and at that street corner, in our minds, hyperNeal R. Gross & Co., Inc. 202-234-4433

Page 276 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 them. concentration. And so therefore it's a

threshold issue of addition. And on a square matter of fairness, Ms. Leeds should be able to stay open at night outside consistent with everyone else and consistent with the ANC's rules. that's part of the challenge here. The ANC And

has its own guidelines for outside hours. They're very reasonable and they don't step up. We asked Ms. Leeds to conform to She did. She's been a good neighbor in

that regard. cushion.

And that is a part of the safety

And to argue that the next door

neighbor who does not close at 2:00 a.m., 3:00 a.m. outside; he closes at 11:00 and 12:00 on the Q side, as the Board ordered after we protested. And the same next door neighbor

around the corner closes at midnight for 84 seats. That's a lack of consistency. And it

is a lack of equity for the other merchants. And they are entitled to fairness. Neal R. Gross & Co., Inc. 202-234-4433

Page 277 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 But we don't get it here when we talk about what about this one? We need the

whole moratorium zone to be equitable on outdoor caf‚ hours and the Board's rules unfortunately don't help point to that. MEMBER GANDHI: So, Mr. Mallof,

would it be safe to assume that you're really most concerned with the outside hours? MR. MALLOF: Oh, well, I would

just like to say that for the most part the critical impacts on residential life, especially where across the street almost everywhere in the moratorium zone it's absolutely 100 percent residential. The

critical dimensionalities are the public space impacts for seats, hours and really fa‡ade opening of the facility, which is a substantial change, to the outside. other -MEMBER GANDHI: You're talking The

about windows and things of that sort. MR. MALLOF: The other two top

Neal R. Gross & Co., Inc. 202-234-4433

Page 278 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 restaurants in the 500 square mile in Washington, D.C. are Komi, number on, Sushi Taro, number two. space. They don't have any public They're good

They're all inside.

neighbors.

A man's and a woman's home is So, the critical issues here

their castle.

are public space dimensionality. MEMBER GANDHI: MR. MALLOF: Got it.

And the Board does

not step up to those issues. MEMBER GANDHI: a question, Mr. Mallof. So, let me ask you

As a neighbor, if

Hank's -- and I'm just asking, right? MR. MALLOF: Yes. If they were open

MEMBER GANDHI:

on the inside until 2:00 and 3:00 on the weekdays/weekends so they had maximum hours, but the outside was restricted to 11:00 or 12:00; you know, I know that there's different times that other establishments are open, that would meet with your approval? MR. MALLOF: May I qualify?

Neal R. Gross & Co., Inc. 202-234-4433

Page 279 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 terminate. MEMBER GANDHI: -- don't talk to don't -MR. MALLOF: -- wants to outside. right? Generally, yes. MEMBER GANDHI: Can't get it,

I was just looking for a yes or no. MR. MALLOF: Well, a staggered

closing time isn't a bad thing, but it's not fair to upon Jamie. It isn't. So yes or no?

MEMBER GANDHI: MR. MALLOF:

No, I'm cool with

But I thought we weren't negotiating We asked her several times. I'm asking you.

for her here.

MEMBER GANDHI: I'm asking you a question. MR. MALLOF:

We asked her several

times if she wanted to change it, but she -MEMBER GANDHI: No, don't --

me about your settlement talks. MR. MALLOF: Sorry. So in the

MEMBER GANDHI:

Neal R. Gross & Co., Inc. 202-234-4433

Page 280 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 you. Voluntary Agreement you have stipulations for the outdoor sidewalk caf‚. MR. MALLOF: Yes. And that protects

MEMBER GANDHI:

It protects the neighbors, quote/unquote

protects people from loud noises, things of that sort. MR. MALLOF: Yes. Got it. And

MEMBER GANDHI:

that's something you don't want to change for the license? MR. MALLOF: I think that's right. Okay. However, in

MEMBER GANDHI:

No. 3, when you talk about interior hours, that's more of a negotiable item to you in the sense of it may be more, you may not mind it as much? MR. MALLOF: interior hours heavily. a -MEMBER GANDHI: about your negotiations. Don't talk to me I'm just talking We did not negotiate Jamie said she ran

Neal R. Gross & Co., Inc. 202-234-4433

Page 281 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 privilege. it? Got it. MR. MALLOF: And because it's a Okay. MR. MALLOF: Yes, that's correct. And these other about -MR. MALLOF: Yes. -- in general.

MEMBER GANDHI:

MEMBER GANDHI:

ones, has loitering, trash removal and outside maintenance been an issue with Hank's? MR. MALLOF: No, not at all, but

I'd like to think that it's because we have a Voluntary Agreement. MEMBER GANDHI: MR. MALLOF: Okay.

And these dimensions

of good citizenship in D.C. become a specific condition of the license. MEMBER GANDHI: MR. MALLOF: could come to you. MEMBER GANDHI: And we can enforce Got it.

And if we had to, we

It's a privilege. Neal R. Gross & Co., Inc. 202-234-4433

Page 282 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 you? that. in. MEMBER GANDHI: And do you believe

that noise, music and -- well, they don't have dancing, because they're restricted to no outdoor music live or taped shall be heard or played in the outdoor caf‚. MR. MALLOF: Yes. We wrote that

The Board didn't establish no outdoor I'd be

music outside in a residential area. grateful if you promulgated a rule. MEMBER GANDHI: All right.

I'm

curious about these umbrellas. MR. MALLOF:

I mean --

I don't know about

We had six protestants, you know? MEMBER GANDHI: That was someone else? So, that wasn't Blame it on

someone else. MR. MALLOF: Yes. All right. But

MEMBER GANDHI:

you agree that's a little farfetched, no? MR. MALLOF: Well, you've had more

farfetched coming through here, from what I've heard. Neal R. Gross & Co., Inc. 202-234-4433

Page 283 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 is good. MEMBER GANDHI: But this is I It's my age. MR. MALLOF: Take it out. I'm asking. fine. MEMBER GANDHI: MR. MALLOF: I'm asking you. No, that's

Yes.

If that's Ms. Leeds' problem -MEMBER GANDHI: No, it's mine.

MEMBER GANDHI: MR. MALLOF:

Take it out. And 9.5, all food

MEMBER GANDHI:

and drinks shall be -- and I'm sorry to take a few minutes, Mr. Brodsky. CHAIRMAN BRODSKY: No, no. This

think important in the process. CHAIRMAN BRODSKY: You're good, Mr. Gandhi. MEMBER GANDHI: You're good.

No, you're good. All food and

drinks shall be purchased from a server by patrons sitting down. served food or drinks. No one standing will be The consumption of

food by each sidewalk caf‚ patron shall be Neal R. Gross & Co., Inc. 202-234-4433

Page 284 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 encouraged. standing? MR. MALLOF: outside, correct. MEMBER GANDHI: MR. MALLOF: Got it. We don't want a CT So, you don't want people

CTs are inside. You want people

MEMBER GANDHI: sitting down outside? issue at all?

But has that been an

I mean, do you see a lot of

people at Hank's, like such a crowd that they have to stand outside? MR. MALLOF: No, I'm not

complaining that they're standing outside. I'm saying that's an important prohibition. We don't want a sardine can of people standing outside. It's a residential neighborhood. MEMBER GANDHI: Okay. I'm just

looking through it as we talk. All right. information I need. MR. MALLOF: Thank you. Mr. Mallof, I I think I got all the

MEMBER GANDHI:

Neal R. Gross & Co., Inc. 202-234-4433

Page 285 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 question. CHAIRMAN BRODSKY: MEMBER NOPHLIN: again thank you for coming. Mr. Nophlin? First of all, You testified really -MR. MALLOF: Thank you so much. Look, as a

MEMBER GANDHI:

community activist that you are, I really appreciate all your time and energy. right? Thanks. All

I have no further questions. Board Members,

CHAIRMAN BRODSKY: any questions? MEMBER NOPHLIN:

I have one

that you had a very good relationship with the ANCs? Do you have a fairly good relationship What is your relationship with

with the ANCs?

the ANCs, let me ask? MR. MALLOF: I don't attend the

ANC meetings because they don't step up on ABC issues. They rubber stamp everything. They

say they look at their guidelines and they didn't step up on this case. When 2:00 a.m.

Neal R. Gross & Co., Inc. 202-234-4433

Page 286 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 questions. CHAIRMAN BRODSKY: Member questions? (No audible response.) CHAIRMAN BRODSKY: questions, Mr. Mallof. business? now? MR. MALLOF: Yes. I work largely I have a couple Any other Board and 3:00 a.m. was filed for, we had to step up, sir, and then we got criticized for being minority. We have a right by law. We have a

right by law to worry about the residential impacts if the ANC looks the other way. They're inconsistent on their own guidelines. I'd rather they not have the guidelines. rather you promulgate them. up. MEMBER NOPHLIN: No other I'd

So, we stepped

Do you have a

Are you working in the District

out of the house, which puts me around the neighborhood a bit. I travel quite a bit. Neal R. Gross & Co., Inc. 202-234-4433 And when I'm not there,

Page 287 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 CHAIRMAN BRODSKY: Is it your

business, or are you working for somebody else? MR. MALLOF: No, it's me. You have your

CHAIRMAN BRODSKY: own, I guess. MR. MALLOF:

It's a one-man band. You ever own a

CHAIRMAN BRODSKY:

retail establishment or a storefront-type business in the District of Columbia? MR. MALLOF: No. Did you ever

CHAIRMAN BRODSKY:

invest in somebody's business who had a small business or a -MR. MALLOF: Oh, yes. -- restaurant

CHAIRMAN BRODSKY:

or a bar, a club, or anything like that? MR. MALLOF: Not like that, but -A restaurant?

CHAIRMAN BRODSKY: MR. MALLOF:

-- I may investments

quite a bit in other kinds of businesses, mostly technology. Neal R. Gross & Co., Inc. 202-234-4433

Page 288 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 CHAIRMAN BRODSKY: Yes. Okay.

But nothing that requires ABC licensure or anything like that, right? So, you've never

invested in that kind of business? MR. MALLOF: No. Can you

CHAIRMAN BRODSKY:

quantify for me -- because I see your name. You're right on the top of the signature list of this VA. MR. MALLOF: Yes. So can you

CHAIRMAN BRODSKY:

quantify for me -- because clearly you were a party to negotiations for all 20 -- I don't know how many points there are in this thing. So, clearly you were a party to the negotiations for all of these things. MR. MALLOF: Yes. So, can you

CHAIRMAN BRODSKY:

quantify for me the improvement in peace, order and quiet in the neighborhood based on the restrictions placed on Hank's Oyster Bar? MR. MALLOF: Yes. To the extent

Neal R. Gross & Co., Inc. 202-234-4433

Page 289 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 that there aren't 100 seats, operating until 3:00 a.m. with a large portion of the people either going to their cars or to the Metro -CHAIRMAN BRODSKY: 100 seats available. MR. MALLOF: -- I can swag those. Well, you can't So, there's not

CHAIRMAN BRODSKY:

swag it, because their C of O doesn't let them have 100 seats. So, I'm sure you had a large

hand in the Lauriol Plaza analogy, so I'm trying to rein you in a little bit here. I want you to be specific about the facts. So, what I'd ask you is can you quantify for me the improvement in peace, order and quiet as a result of this Voluntary Agreement? MR. MALLOF: Well, yes, but it's It's in So,

an opportunity cost sort of analysis.

not having a Lauriol Plaza that the Board allowed -CHAIRMAN BRODSKY: talking about -MR. MALLOF: -- at the corner of Yes, we're not

Neal R. Gross & Co., Inc. 202-234-4433

Page 290 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 18th and T. CHAIRMAN BRODSKY: Mr. Mallof. Okay?

Mr. Mallof, this is not Lauriol Plaza. It's also not Camelot. Right?

Why didn't you

use that analogy instead? MR. MALLOF: Well, we're saying -So, what you

CHAIRMAN BRODSKY:

need to do is you need to stay grounded in reality for me. MR. MALLOF: Yes. Yes. And if you I

CHAIRMAN BRODSKY:

can't answer this question, that's cool.

mean, it's a tough question to answer, which is why I asked it. Right? But you're a smart

guy, so maybe you'll come up with an answer. But I want you to stay focused on this establishment. You've reduced their seats Eighty your C

from -- how many did you get? of O lets you have total? MR. KLINE:

Actually, for the

record the Board file should reflect that the Certificate of Occupancy is for 65. Neal R. Gross & Co., Inc. 202-234-4433

Page 291 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 MS. LEEDS: Inside. So, your C of O

CHAIRMAN BRODSKY: is for 65 seats? MR. KLINE:

That's correct. Okay. So,

CHAIRMAN BRODSKY:

you've got exactly basically what the law lets you? MR. KLINE: Right. Okay. So,

CHAIRMAN BRODSKY:

which I don't even know why then this thing is even in here in the first place, this one sentence. Because you're right at your C of O, right? MR. KLINE: Correct. Okay. So based

CHAIRMAN BRODSKY:

on all of the restrictions in here, including restrictions in normal operating hours and all that stuff, quantify for me the improvement in peace, order and quiet as a result of this Voluntary Agreement with Hank's. MR. MALLOF: Well, then I'll give And this

you one, and it's the most telling.

Neal R. Gross & Co., Inc. 202-234-4433

Page 292 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 is a great question, sir. is an avoidable cost. Thank you. But it

It is the difference

between closing outside at midnight -- I'm sorry, at 11:00 and 12:00 versus 2:00 a.m. and 3:00 a.m. as was applied for by the Applicant; that is, 11:00, 12:00, 1:00, 2:00. That's

three hours every night of the week, 20 people outside probably with the Red Bull and vodka stories increasing as you get into the late night hour. So, that is quantifiable. And I

can turn 20 seats time any number of martinis. What would you like? That's a number. So, is that

CHAIRMAN BRODSKY:

three hours every night of the week? MR. MALLOF: believe so, sir. CHAIRMAN BRODSKY: about inside? MR. MALLOF: quibble on the inside. her back. I didn't have a big I'm not trying to hold And then how Outside, yes. I

No one's trying to hold her back.

She offered those hours. Neal R. Gross & Co., Inc. 202-234-4433

Page 293 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 CHAIRMAN BRODSKY: So if I'm not

mistaken then, Mr. Mallof, then what we're talking about here is substantial. talking about 1,000 hours a year. MR. MALLOF: Yes. Where you have You're

CHAIRMAN BRODSKY:

20 people times some table turn times whatever money they're spending. MR. MALLOF: if that's the math. CHAIRMAN BRODSKY: Did you ever Outside, absolutely,

for a moment think about the negative impact of the revenue implications of that on the bar owner? MR. MALLOF: Well, sir -So, what you

CHAIRMAN BRODSKY: just said to me is -MR. MALLOF:

I'm sorry. -- I've just

CHAIRMAN BRODSKY:

quantified the improvement in peace, order and quiet because I kept them closed for an extra outside 1,000 hours a year. Neal R. Gross & Co., Inc. 202-234-4433

Page 294 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 here? wait. CHAIRMAN BRODSKY: How does that MR. MALLOF: Yes. At 20 people

CHAIRMAN BRODSKY:

outside times, I don't know, what you'd say martinis? What do you charge for a martini? MS. LEEDS: Nine dollars. Okay. So now

CHAIRMAN BRODSKY:

you've got 180, three hours every night times 1,000 hours. That's what? I mean, I can't

think that fast.

What's that, a couple

$100,000 in revenue? MR. MALLOF: Well, wait is that --

figure into the equation, Mr. Mallof? MR. MALLOF: Three hours -CHAIRMAN BRODSKY: asked you to quantify -MR. MALLOF: Well, let's do it, sir. Well, let's do it. I got my calculator. No, no. I Well, I just What are we doing

CHAIRMAN BRODSKY:

don't need you to do anything for me, Mr. Neal R. Gross & Co., Inc. 202-234-4433

Page 295 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 to -CHAIRMAN BRODSKY: So now can you Mallof. All right? I asked you to quantify

for me the improvement in peace, order and quiet and what you pointed me to was the fact that you've restricted these people three hours a night times seven days a week times 20 people times the turn times the dollars the people spent. sure why. MR. MALLOF: Yes, that's right. Let's say You used martinis, I'm not so

CHAIRMAN BRODSKY: oysters and martinis.

So to me what that

looks like is you've just quantified the damage that you've done by restricting this Licensee's hours. MR. MALLOF: Well, sir, I want

quantify the improvement in peace, order and quiet? MR. MALLOF: Yes. Okay.

CHAIRMAN BRODSKY: MR. MALLOF:

We have taxpayers who

Neal R. Gross & Co., Inc. 202-234-4433

Page 296 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 of people. MR. MALLOF: Thank you. I -MR. MALLOF: proportion here. CHAIRMAN BRODSKY: Mr. Mallof, I We have to have pay beaucoup bucks to this District of Columbia for property taxes and vehicles taxes and everything else for us to live as residents. CHAIRMAN BRODSKY: MR. MALLOF: Right.

I would appreciate

this Board thanking the residents for living in the District of Columbia and for doing our contribution and that you not have an asymmetric monochromatic view of this being only for businesses. CHAIRMAN BRODSKY: Mr. Mallof,

personally invest millions of dollars in the District of Columbia to run my businesses. MR. MALLOF: Thank you. I employ lots

CHAIRMAN BRODSKY:

Neal R. Gross & Co., Inc. 202-234-4433

Page 297 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 business. CHAIRMAN BRODSKY: I rent space.

I do a lot of things in the District of Columbia. So your precocious comment about

hoping the Board recognizes the value that citizens bring is just that, it's precocious and it's a little bit childlike. So, I would

like you to recognize that the people on this Board are citizens of the District of Columbia. MR. MALLOF: I thank you for it. I spend 30

CHAIRMAN BRODSKY:

percent of my work week on this Board. MR. MALLOF: Thank you. I have a small

CHAIRMAN BRODSKY:

You know how hard it was for me to Not easy. Okay?

do that, Mr. Mallof?

MR. MALLOF:

Thank you. So I'm making

CHAIRMAN BRODSKY: my contribution.

So what I can't seem to find So you

here is any kind of quantification.

said to this Licensee, look, you guys are going to harm peace, order and quiet and the Neal R. Gross & Co., Inc. 202-234-4433

Page 298 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 days. CHAIRMAN BRODSKY: -- times seven, way we're going to prevent that is we're going to have you sign this Voluntary Agreement that's going to restrict your hours and that's going to keep things better. So what I'm asking you is to say -- since you were the top level signatory on this thing, right? MR. MALLOF: Yes. You're here So from 2005

CHAIRMAN BRODSKY: representing all these people.

to 2011 how do you quantify, what's the actual quantification of the improvement in peace, order and quiet as a result of having 1,000 a year times five, of having 6,000 less hours of operation? How do you quantify that? MR. MALLOF: I don't know where

you're getting 6,000 hours. CHAIRMAN BRODSKY: Well, you

restricted them three hours each night -MR. MALLOF: Three hours time 365

Neal R. Gross & Co., Inc. 202-234-4433

Page 299 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 sir. is -CHAIRMAN BRODSKY: So my question so that's 21 hours a week times 52. you can figure it out. MR. MALLOF: Yes, three times 365 I mean,

is how do you quantify it, Mr. Mallof? MR. MALLOF: I just did for you,

We just ran the numbers. CHAIRMAN BRODSKY: How do you say

that peace, order and quiet has improved as a result of this restriction? MR. MALLOF: Well, you haven't

driven away neighbors like I believe the Board drove away at 18th and T. did decrease. CHAIRMAN BRODSKY: I'm going to The property values

ask you to just keep focused on just this Licensee. That's all. Not Lauriol Plaza. I

don't know where 18th and T -- I don't know what that is, right? But I want you to keep

focused on this, because you signed this VA. MR. MALLOF: Yes.

Neal R. Gross & Co., Inc. 202-234-4433

Page 300 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 she cares. impacts. CHAIRMAN BRODSKY: the whole place restricted. MR. MALLOF: quibbling on that. CHAIRMAN BRODSKY: I care. And Well, I'm not No, you've got this. CHAIRMAN BRODSKY: You negotiated

So quantify it for me, Mr. Mallof. MR. MALLOF: I just did, sir.

It's at the very least 1,000 hours a year that aren't on public property. It is public And -Oh, you're You're

property, not private property. CHAIRMAN BRODSKY: referring to the outside there? referring to the sidewalk caf‚? MR. MALLOF:

All we're quantifying

here is 20 seats times 1,000 hours on the public property. The issues are -Oh, I'm talking

CHAIRMAN BRODSKY: about the whole place. MR. MALLOF:

-- the public

People care about -Neal R. Gross & Co., Inc. 202-234-4433

Page 301 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 one second. Neal R. Gross & Co., Inc. 202-234-4433 Sorry. CHAIRMAN BRODSKY: MR. KLINE: Board Members -CHAIRMAN BRODSKY: Yes, hang on Mr. Kline? you. CHAIRMAN BRODSKY: thank you very much. Don't get up, Mr. Mallof. still got work to do. MR. MALLOF: Oh, thank you. You Mr. Hibey, her behalf. sir. MR. MALLOF: You're negotiating on

She hasn't filed that request,

I mean, you might as well get down and

sit over there. CHAIRMAN BRODSKY: think your time is done. Thank you, Mr. Hibey. Thank you, sir. your comments. MR. MALLOF: My pleasure. Thank We appreciate Mr. Mallof, I

Yes, do any of the

Page 302 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Board Members? Well, we asked them if they had any questions. Nobody else had any. Okay. So, I'm You guys cool?

MR. KLINE:

CHAIRMAN BRODSKY: presuming nobody still does.

(No audible response.) CHAIRMAN BRODSKY: MR. KLINE: Mr. Kline? Mr.

All right.

Mallof, your contention is your concern about the late hours on the patio was I think you said the Red Bull and vodka starts. been in Hank's Oyster Bar? MR. MALLOF: MR. KLINE: Oh, yes. They don't serve Red You ever

Bull in that establishment, do they? MR. MALLOF: I'm speaking

generally about the outdoor impacts on the entire street. MR. KLINE: All right. So it's

your contention that this establishment should be restricted because of what other Neal R. Gross & Co., Inc. 202-234-4433

Page 303 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 many. establishments do, isn't it? MR. MALLOF: No, Ms. Leeds is the

last one in and we negotiated based on threshold over-concentration that already exists there. So we had to negotiate on the

basis of the increment, unfortunately, sir, since no one else has consistent rules or regs on public space. MR. KLINE: Have you had

difficulty with other establishments in the neighborhood? MR. MALLOF: Oh, over the years

That's sort of why I'm here, yes. MR. KLINE: Okay. And you can

identify which establishments caused the difficulty, correct? MR. MALLOF: Well, that's been

well known, I think also to this Board, over the years, yes. MR. KLINE: All right. And have

you protested their renewals? MR. MALLOF: Yes.

Neal R. Gross & Co., Inc. 202-234-4433

Page 304 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 MR. KLINE: Okay. But in this

case you sought to restrict this business' new license without knowing what the effects would be, correct? MR. MALLOF: Well, we had concerns

about the incremental effect and we did have good reason to be concerned about any increment when the Board found overconcentration, renewed the moratorium and yet continued to allow expansion of seats and hours, yes. MR. KLINE: MR. MALLOF: MR. KLINE: Okay. Yes. Well, the moratorium

relates to licenses, doesn't it? MR. MALLOF: MR. KLINE: You say so, I guess. Do you know? You're

involved in the moratorium, correct? MR. MALLOF: The licenses are

integrally tied to the hours and the seats involved. MR. KLINE: Mr. Mallof, please.

Neal R. Gross & Co., Inc. 202-234-4433

Page 305 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 The moratorium relates to number of licenses in the neighborhood, doesn't it? MR. MALLOF: MR. KLINE: MR. MALLOF: average license. MR. KLINE: So this was a transfer Yes. Okay. I have to take the

of an existing license, correct? MR. MALLOF: MR. KLINE: Yes. So the moratorium was

completely irrelevant to this proceeding, wasn't it? MR. MALLOF: MR. KLINE: MR. MALLOF: The existing -To Ms. Leeds' license? No, it wasn't. The

existing Licensee had only a dozen seats and it was a DR. MR. KLINE: MR. MALLOF: All right. So --

This was a CR was

requesting seats outside that were significant and inside. MR. KLINE: Okay. But it was not

Neal R. Gross & Co., Inc. 202-234-4433

Page 306 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 basis, yes. Neal R. Gross & Co., Inc. 202-234-4433 a new license, correct? MR. MALLOF: MR. KLINE: Oh, that's correct. All right. So it

didn't have anything to do with the moratorium, correct? MR. MALLOF: In your eyes. In our

eyes the incremental impacts were very much related to the moratorium. We come in and

argue peace, order and quiet, but then you want to say that it's not related to the decision of the moratorium. MR. KLINE: MR. MALLOF: of the impacts. In fact -But there are drivers

The impacts are the reason

for the moratorium. MR. KLINE: In fact the reasons

for the restrictions in the Voluntary Agreement was because of prospective fear that this Licensee would disturb the neighborhood, correct? MR. MALLOF: On an incremental

Page 307 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 can't. MR. MALLOF: MR. KLINE: MR. MALLOF: that's correct. Correct. Can you say -I have not -- yes, MR. KLINE: All right. And in

fact this Licensee hasn't disturbed the neighborhood at all, has it? MR. MALLOF: I can't say that.

Mr. Poozesh didn't say that. MR. KLINE: Okay. But you can't

say that it has disturbed the neighborhood, can you? MR. MALLOF: I don't want to card I want to stay

Jamie's patrons at 2:00 a.m. in bed. Correct. MR. KLINE:

Either you can or you

That's correct. All right. Absolutely. Now in terms of what's

MR. KLINE: MR. MALLOF: MR. KLINE:

in this Voluntary Agreement you said that your concern with respect to standing patrons is a Neal R. Gross & Co., Inc. 202-234-4433

Page 308 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 that -Neal R. Gross & Co., Inc. 202-234-4433 sardine can of people outside in the sidewalk caf‚ area, correct? MR. MALLOF: We would prefer that

there not be a CT outside, standing room only. MR. KLINE: Can you please just

try to answer my question, Mr. Mallof? MR. MALLOF: MR. KLINE: MR. MALLOF: MR. KLINE: Correct. All right. Sorry. If the same number of Correct.

people were standing as opposed to sitting in the sidewalk caf‚ area, that would not be a sardine can full of people, would it? MR. MALLOF: that wasn't the request. MR. KLINE: Well, doesn't the It would not be, but

Voluntary Agreement restrict people's ability to stand and consume drinks? MR. MALLOF: MR. KLINE: MR. MALLOF: Yes -And --- that's a dimension

Page 309 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 of ours. MR. KLINE: Well, is it the number me, sir. MR. KLINE: MR. MALLOF: have as a rule. Mr. Mallof, please. -- the Board does not

We negotiated that. Mr. Chair, I would ask

MR. KLINE:

that the witness be directed to allow me to finish my question. MR. MALLOF: It's late. MR. KLINE: All right. So, just The I'm sorry. Forgive

so I can go back to that question.

Voluntary Agreement restricts standing in the sidewalk caf‚, doesn't it? MR. MALLOF: MR. KLINE: Yes. All right. And that's

not really a concern of yours, is it? MR. MALLOF: It's a huge concern

of people or people standing? MR. MALLOF: That Voluntary

Agreement ensure 20 sitting and no additional standing. Neal R. Gross & Co., Inc. 202-234-4433

Page 310 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 that? Neal R. Gross & Co., Inc. 202-234-4433 MR. KLINE: MR. MALLOF: for public impacts. MR. KLINE: All right. If those Okay. It's very powerful

20 people are standing, you don't have any issue with that? Is that what I'm hearing? I do, because that's

MR. MALLOF:

more likely to be a bar than a restaurant. The District does not, as I understand it, want CTs nor do the residents outside. It's

hard to hold the plate of food and the drink. MR. KLINE: MR. MALLOF: Mr. Mallof -The seating is a

vital -- is fairly important. MR. KLINE: You're aware that a CR

Licensee is required to comply with the minimum food service requirements whether people are sitting or standing, aren't you? MR. MALLOF: Perhaps. It sounds

like it's been a very weak deal to me. MR. KLINE: So you're not aware of

Page 311 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 it doesn't. Thank you. MR. KLINE: So if people are best job. CHAIRMAN BRODSKY: So if you could MR. MALLOF: Well, I think it's

been troubling for the Board to enforce that. CHAIRMAN BRODSKY: Mr. Mallof, I'd

appreciate it if you don't impugn any actions towards the Board for which you have absolutely no information on. MR. MALLOF: The Board does its

keep your comments about the Board to a minimum, or your time is going to super short. MR. KLINE: MR. MALLOF: Thank you. I'm sorry, sir.

standing in the sidewalk caf‚ area consuming food or drinking, it really doesn't affect whether this establishment is a CT or a CR, does it? MR. MALLOF: We simply made it --

We simply made it clear that it

was 20 with no other exceptions. Neal R. Gross & Co., Inc. 202-234-4433

Page 312 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 complained. been. MR. KLINE: MR. MALLOF: have been trash problems. MR. KLINE: Oh, I think you Am I correct? No, I think there there's -MR. KLINE: MR. MALLOF: Yes or no question. I think there have MR. KLINE: MR. MALLOF: Now you -That is a

clarification that is quite valuable. MR. KLINE: Okay. Now you

testified that there haven't been any problems with loitering, trash removal and outside maintenance, correct? MR. MALLOF: Oh, I think

responded to one of the Board Members' questions that there hadn't been, and I think you said that was because you have a Voluntary Agreement. Wasn't that your testimony? MR. MALLOF: No, we haven't

I'm sorry if I'd forgotten it. Neal R. Gross & Co., Inc. 202-234-4433

Page 313 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 sir. We haven't complained, but rumor is there are some trash issues with all those establishments including Hank's. MR. KLINE: MR. MALLOF: MR. KLINE: Rumor is? Yes. You asked.

So you don't have any

knowledge this is -- your knowledge is of rumors? MR. MALLOF: No, I don't. Yes,

I don't scurry around the alley.

There's plenty else that is -MR. KLINE: All right. So, are

you willing to concede that your testimony was that you haven't had any problems with this establishment related to loitering, trash removal and outside maintenance and you believe that's because of the Voluntary Agreement, which is what you testified to before? MR. MALLOF: MR. KLINE: Yes. Okay. There are other

establishments in the neighborhood which have Neal R. Gross & Co., Inc. 202-234-4433

Page 314 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 yes. MR. KLINE: Okay. So the fact of Voluntary Agreements with which you have had problems related to loitering, trash removal and outside maintenance, aren't there? MR. MALLOF: MR. KLINE: MR. MALLOF: Yes. Okay. The signatories have,

the matter is whether there's a Voluntary Agreement or not doesn't really determine whether you're going to have problems related to loitering, trash removal and outside maintenance, does it? question. MR. MALLOF: MR. KLINE: MR. MALLOF: MR. KLINE: It does. Okay. Yes, it does. But you've had It's a yes or no

problems with people who have Voluntary Agreements related to loitering, trash removal and outside maintenance and there are others who have the same agreements with whom you Neal R. Gross & Co., Inc. 202-234-4433

Page 315 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 haven't had those problems, correct? MR. MALLOF: MR. KLINE: MR. MALLOF: MR. KLINE: Depends. All right. Yes. And there are some Yes.

people that don't have agreements that you don't have any problems with, correct? MR. MALLOF: MR. KLINE: That's correct. All right. So I think

we can agree; tell me if you do, that the existence of the Voluntary Agreement is really not determinative as to whether you have problems with a particular establishment, is it? MR. MALLOF: MR. KLINE: MR. MALLOF: MR. KLINE: No. Okay. Thank you.

No, not at all. All right. Now, in

terms of this establishment having seats out in March, you don't have any problem with that, do you? MR. MALLOF: No.

Neal R. Gross & Co., Inc. 202-234-4433

Page 316 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 MR. KLINE: Okay. And you've

already said you dont' care what logos are on the umbrellas, correct? MR. MALLOF: Other signatories did

for the look of the neighborhood, but no I don't. MR. KLINE: All right. And coming

back to this issue of standing, your issue is the capacity in the outside area, correct? MR. MALLOF: MR. KLINE: That was a yes. All right. In terms

of whether people are sitting or standing, that's not really an issue, is it? MR. MALLOF: No, it is an issue. We don't want

I just said it was an issue.

people standing because that's more likely to be CT-like activity, because how are you supposed to hold the plate? MR. KLINE: MR. MALLOF: Okay. The issue is the

likelihood of impacts based on the format of the menu and the restaurant. Yes, we would

Neal R. Gross & Co., Inc. 202-234-4433

Page 317 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 pending. MR. MALLOF: MR. KLINE: MR. MALLOF: MR. KLINE: Thank you. Thank you, Mr. Mallof. Sorry. Now is your contention prefer they eat outside and if they want to drink, drink inside at the bar. have 100 percent residences -MR. KLINE: There's no question Terrific. We

that had you not been able to negotiate this Voluntary Agreement that residents would flee from your neighborhood and sell their homes? MR. MALLOF: I'm simply saying

that at a threshold there will be impacts, yes. MR. KLINE: MR. MALLOF: MR. KLINE: Okay. People have to sleep. And your contention is

in the absence of this Voluntary Agreement that real property values would decline. that your testimony? MR. MALLOF: It could very well. Is

Neal R. Gross & Co., Inc. 202-234-4433

Page 318 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 further. is yes. CHAIRMAN BRODSKY: -- are you -MR. MALLOF: I believe the answer Oh, yes. MR. KLINE: Will it or won't it? MR. MALLOF: You had a gentleman Well, could very well.

from the Cairo who doesn't even live in -MR. KLINE: answer my question. MR. MALLOF: -- the front of the Mr. Mallof, please

building present expert testimony. CHAIRMAN BRODSKY: Mr. Mallof,

instructed to answer the question that's asked of you. MR. MALLOF: Yes. And not

CHAIRMAN BRODSKY: anything else. MR. KLINE: Thank you. CHAIRMAN BRODSKY:

I don't have anything

Okay.

Neal R. Gross & Co., Inc. 202-234-4433

Page 319 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Chairman. There's been a lot of questions about the outdoor area and the concern about standing versus sitting. MR. MALLOF: MEMBER JONES: Yes, sir. And I'm actually I up? CHAIRMAN BRODSKY: you're alive over there. MEMBER JONES: Thank you, Mr. Glad to see MEMBER JONES: Mr. Chairman? Yes, Mr. Jones?

CHAIRMAN BRODSKY: MEMBER JONES:

May I just follow

guess trying to understand rationally what you're saying, and I'm really trying to understand rationally what you're saying. MR. MALLOF: MEMBER JONES: Yes. So how would you go

about enforcing that aspect of your negotiated Voluntary Agreement? MR. MALLOF: Well, it's the same

challenge of enforcement that any citizen has Neal R. Gross & Co., Inc. 202-234-4433

Page 320 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 regarding anything around here. You've got to

call the inspector and have something written up. it. It's very tedious and no one much does Part of the process, sir, is that there's

faith in executing the contract, good will between the licensee and the residents. The

residents don't want to run around and make phone calls. MEMBER JONES: So if I understand

the way it's written; and maybe I don't quite understand the way it's written, but if I am a patron in the outdoor area and I am standing and I'm talking to say somebody that's seated at the table, would that be considered a violation of the VA? MR. MALLOF: technically, yes. Yes. I guess maybe

And that someone has to We

call and seem like a fuddy-duddy, yes. don't want to do that. MEMBER JONES:

You don't want to

do that, but that's basically what you're saying you want us to enforce as the Board, Neal R. Gross & Co., Inc. 202-234-4433

Page 321 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 cost. right? MR. MALLOF: No, I want Ms. Leeds

and other licensees to in good faith sign up for things that we can trust as neighbors because they signed up for it they'll follow. So, that language has value even if we don't call you and ask the inspector to come out. We don't want to do that. But absent your

regs, sir, that's the best thing we have, to rely on good faith between other neighbors. MEMBER JONES: MR. MALLOF: important sentence. MEMBER JONES: So your intent Okay. And that's a very

isn't for us to enforce it to the letter of the law. There's a general try to do good,

try and do what we ask type of approach? MR. MALLOF: Everything has a

We wouldn't want you to incur huge

costs of enforcement, but the possibility of there being enforcement should ensure good faith between the Licensee and the neighbors. Neal R. Gross & Co., Inc. 202-234-4433

Page 322 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Board? sir. Any other questions from the So, I'm going to have just one more Neal R. Gross & Co., Inc. 202-234-4433 yes. MEMBER JONES: MR. MALLOF: MEMBER JONES: you, Mr. Chairman. CHAIRMAN BRODSKY: You're welcome, Oh, okay. So, anyway. All right. Thank agitated. MR. MALLOF: I'm disappointed, not codify. MEMBER JONES: MR. MALLOF: MEMBER JONES: Are you okay? MEMBER JONES: Okay. And would

that same general approach apply to all of the statements that you have in your VA? MR. MALLOF: dimensions, yes. Yes. Okay. Better to codify than Many of the 19

MEMBER JONES: MR. MALLOF:

I'm -You seem a little

Page 323 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 question. cool? (No audible response.) CHAIRMAN BRODSKY: The one thing Any other Board Members? Everybody

that concerns me about this, Mr. Mallof, these VAs, that there seem to be, what do you call them, dimensions -MR. MALLOF: Yes. -- So, I'll

CHAIRMAN BRODSKY:

just pick one; call it dimension 6.6, that require -- and we talk about this all the time behind closed doors, and I'm probably one of the loudest ones to talk about this, but where in Voluntary Agreements it requires the Agency to monitor and be the police sort of of things that are not in our jurisdiction. So for

example, right now if somebody has a trash issue in front of their establishment, they don't call us. DDoT. Right? I guess they've called Like, I

Who's responsible for trash?

don't even know.

Like if you were a billiard

hall and you didn't have a liquor license and Neal R. Gross & Co., Inc. 202-234-4433

Page 324 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 you -CHAIRMAN BRODSKY: MR. MALLOF: ticket writers, yes. CHAIRMAN BRODSKY: Yes, so you'd Yes. Trash. I think DPW has you overflowed your trash dumpster with old chicken wings and rats got all over it and caused a blight in the neighborhood, who would you call? MR. MALLOF: Chicken wings? If

call like the people responsible for trash? MR. MALLOF: Well, I know that,

but the average neighbor doesn't, but yes. Yes. Yes. CHAIRMAN BRODSKY: Well, I'm not

talking about the average neighbor. MR. MALLOF: Yes. I'm asking you.

CHAIRMAN BRODSKY: I'm asking you. Okay.

So if there was loitering in front of a billiard hall and a bunch of noisy kids were loitering about, who would the neighbor Neal R. Gross & Co., Inc. 202-234-4433

Page 325 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 call? MR. MALLOF: MPD. So what

CHAIRMAN BRODSKY:

concerns me about this is the apparent expansion of ABRA's jurisdiction. I think

it's kind of troubling to us that we're now as a result of these VAs being required to figure out what a neat black wrought iron tree guard should look like. responsible for it. Because if not, we're Right? It's in our VA,

so if somehow they violate that -- so if you came to us, Mr. Mallof, and said holy cow, man, Jamie, she put a white wrought iron fence around her tree box. And you'd come to us and You know,

you'd say it's supposed to black.

we want you to find her in violation of her VA. So, what I'm trying to figure out is how

does stuff that's not the responsibility of ABRA's jurisdiction land in a VA? MR. MALLOF: It's a condition of

-- it's a privilege of the license and these are reasonable things for the neighbors to ask Neal R. Gross & Co., Inc. 202-234-4433

Page 326 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 that -CHAIRMAN BRODSKY: they're reasonable. MR. MALLOF: Well, if I may say, Well, you think

on loitering, the likelihood of it being related to ABC could be significant, just as much as it couldn't be. CHAIRMAN BRODSKY: Well, how about

a black wrought iron tree guard? MR. MALLOF: Well -Like I know I'm

CHAIRMAN BRODSKY:

nitpicking here, but what I'm trying to figure out is -- because I talk about this with the Board all the time -MR. MALLOF: Sure. -- which is I

CHAIRMAN BRODSKY:

don't want to be the black wrought iron police. MR. MALLOF: Well, I don't -Nor do I want

CHAIRMAN BRODSKY:

to be the loitering police or the trash police. Neal R. Gross & Co., Inc. 202-234-4433

Page 327 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 sir. CHAIRMAN BRODSKY: Well, I'm That's kind yes. CHAIRMAN BRODSKY: So we're just MR. MALLOF: No, I -I got a lot of

CHAIRMAN BRODSKY: responsibility here as it is. MR. MALLOF:

I think you're right,

trying to figure out how your 19 dimensions of compatibility found their way into this thing, when all I can see here that's within ABRA's purview is two or three. MR. MALLOF: I don't think so,

looking at, you know, the hours. of in our bailiwick.

I'm looking at noise, That's

music -- well, I'm looking at dancing. kind of in our bailiwick.

But I'm just trying

to figure out how these things keep growing in size and stature. that? MR. MALLOF: Well, forgive me. We You got any thoughts on

didn't pass out the sheet, but last call on Neal R. Gross & Co., Inc. 202-234-4433

Page 328 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 that. CHAIRMAN BRODSKY: So I'm going to at 9:00 p.m. call mean? MR. MALLOF: Thirty minutes before call mean? MR. MALLOF: space is very important. CHAIRMAN BRODSKY: What does last Last call on public public space, that's not a part of your rules. I think you've got last call for interior, not on public space. CHAIRMAN BRODSKY: What's last

closing of the patio, the public space patio. That's in there. public space area. very reasonable. CHAIRMAN BRODSKY: MR. MALLOF: Yes. Hard stop on clearing the A hard stop time. That's

Windows must be shut

That's very reasonable. CHAIRMAN BRODSKY: You're not

answering my question, Mr. Mallof. MR. MALLOF: You're really good at

Neal R. Gross & Co., Inc. 202-234-4433

Page 329 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 rein you in again. So what I'm asking you is

how does stuff that's outside of ABRA's jurisdiction -- why do you think it's important to stick it in a VA? MR. MALLOF: I'm not here to

defend a black wrought iron tree box. CHAIRMAN BRODSKY: You know, Mr.

Mallof, one of the things you do really well is avoid people's questions. MR. MALLOF: I'm sorry. But I'm going

CHAIRMAN BRODSKY:

to stick it to you still a little bit more until I get an answer. MR. MALLOF: Please, sir. Because, you How does

CHAIRMAN BRODSKY:

know, you're part of the process. something that's not part of ABRA's jurisdiction wind up in a VA?

And I'll give

you a specific example, so this way you can't obtusely pontificate on me. MR. MALLOF: Yes. Regular trash So 6.3, right?

CHAIRMAN BRODSKY:

Neal R. Gross & Co., Inc. 202-234-4433

Page 330 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 privilege. CHAIRMAN BRODSKY: MR. MALLOF: Okay. to go soon. MR. MALLOF: The licensing is a question? a long day. CHAIRMAN BRODSKY: you a question. Well, I asked removal. 6.4, deposit trash and garbage in The last time I checked

run-proof dumpsters.

ABRA regs, we don't have any jurisdiction over that. So how does stuff that's not in our

jurisdiction end up in a VA? MR. MALLOF: May I answer? That's an open-ended I'm sorry, it's been

I'm expecting an answer. Okay. But I'd like

MR. MALLOF:

CHAIRMAN BRODSKY:

you to kind of keep it under four hours, if you could. MR. MALLOF: Yes. Because we got

CHAIRMAN BRODSKY:

And it generates

enormous positive and negative potential Neal R. Gross & Co., Inc. 202-234-4433

Page 331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 impacts. And as you tried to quantify I think

pretty well some additional revenue for the District. It is not unreasonable to ask that

the other things that are not sort of synchronous and congruent like DDoT, DPW, DCRA, that they be made a little bit more synchronous to be a condition of the license. That is not unreasonable. CHAIRMAN BRODSKY: But you didn't

answer the question, which is why does it end up on ABRA's plate? You know, why -Because this is the

MR. MALLOF: greatest privilege.

CHAIRMAN BRODSKY: MR. MALLOF:

Why --

This is the greatest

privilege and the greatest revenue producer and the greatest impact potential negative generator. It is a fishing license that could

over-fish a stream. CHAIRMAN BRODSKY: So basically

what you're saying is because it's the most important thing to the Licensee, you can force Neal R. Gross & Co., Inc. 202-234-4433

Page 332 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Mr. Kline? MR. KLINE: Mr. Mallof, isn't it questions? them into accepting conditions of -MR. MALLOF: I didn't say that. -- of a

CHAIRMAN BRODSKY:

Voluntary Agreement that -- well, I'm just trying to figure out how something that's not in our purview gets into a license agreement. MR. MALLOF: It seems to be very Okay?

important to the District of Columbia. CHAIRMAN BRODSKY: lot in the future.

We get that a

Thanks, Mr. Mallof. Okay. Thank you. Any other

MR. MALLOF:

CHAIRMAN BRODSKY: Gentlemen?

(No audible response.) CHAIRMAN BRODSKY: MR. KLINE: Mr. Kline?

Just one. Mr. Hibey? Oh,

CHAIRMAN BRODSKY:

you that asked for the neat black wrought iron tree guard in the front public space tree box? MR. MALLOF: I don't recall. I

Neal R. Gross & Co., Inc. 202-234-4433

Page 333 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 day. Jamie. CHAIRMAN BRODSKY: Thank you, Mr. Mallof. Any other witnesses, Mr. Hibey? That was it, right? That was your fourth? I think one other Have a good Mallof. MR. MALLOF: I want to thank believe that was on our wish list, yes. MR. KLINE: MR. MALLOF: Okay. Thanks. Indeed.

Indeed.

CHAIRMAN BRODSKY:

Mr. Hibey, you

got anything you want to add to this witness' plate? MR. HIBEY: No. Thank you, Mr.

CHAIRMAN BRODSKY:

MR. HIBEY:

witness wants to testify. MR. KLINE: I would ask if Mr.

Hibey would like to call -MR. HIBEY: minute or two? CHAIRMAN BRODSKY: A quick minute, Could I have like a

Neal R. Gross & Co., Inc. 202-234-4433

Page 334 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 much. Your witness, Mr. Hibey. MR. HIBEY: for the record. Please state your name the record. Mr. Hibey, you got your surprise witness ready? MR. HIBEY: Surprise witness is a sure. We're off the record. (Whereupon, at 6:06 p.m. off the record until 6:10 p.m.) CHAIRMAN BRODSKY: We're back on

dismissed Protestant, Robin Diener from DCCA. CHAIRMAN BRODSKY: MS. DIENER: Hello. Raise your All right.

CHAIRMAN BRODSKY: right hand for me.

Do you affirm the

testimony you'll give is the truth, the whole truth and nothing but the truth? MS. DIENER: Yes, I do. Thank you so

CHAIRMAN BRODSKY:

Please state your name. My name? Oh. My

MS. DIENER:

Neal R. Gross & Co., Inc. 202-234-4433

Page 335 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 name is Robin Diener. MR. HIBEY: MS. DIENER: Corcoran Street. MR. HIBEY: And are you involved Where do you live? I live at 1612

with the Dupont Circle Citizens Association? MS. DIENER: I am. I'm president

currently for this term, this one-year term. MR. HIBEY: MS. DIENER: Okay. But I also live

within a block of Hank's Oyster Bar. MR. HIBEY: Okay. Do you oppose

termination of the Voluntary Agreement in this case? MS. DIENER: We do oppose

termination of the Voluntary Agreement in this case, yes. CHAIRMAN BRODSKY: Ms. Diener, you

used the term "we" as opposed to "I." MS. DIENER: Okay. Well -So are you

CHAIRMAN BRODSKY:

speaking for you or are you speaking for some Neal R. Gross & Co., Inc. 202-234-4433

Page 336 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 make sure -MS. DIENER: In that case may I neighbor. CHAIRMAN BRODSKY: I'm just asking other group? MS. DIENER: I'm actually speaking

for the Dupont Circle Citizens Association. If you don't want me to speak on their behalf, I'll speak on behalf of myself -CHAIRMAN BRODSKY: Well, I'm not

asking that, because I'm not so sure -MS. DIENER: -- as well as a

you who you're speaking for so that we have it on the record -MS. DIENER: Okay. -- that you're

CHAIRMAN BRODSKY:

in a representative capacity of the Dupont Circle Citizens Association. MS. DIENER: Okay. I just want to

CHAIRMAN BRODSKY:

give you just a written statement for the record for you to have? Neal R. Gross & Co., Inc. 202-234-4433

Page 337 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 CHAIRMAN BRODSKY: on the way out. MS. DIENER: Okay. Thank you. Yes, you can,

Can I represent both if I'm clear about which I'm speaking to? CHAIRMAN BRODSKY: have a particular problem. I don't think I

But, Mr. Kline, do

you have an objection to her representing the DCCA as a witness in this? MR. KLINE: If she's authorized.

I mean, as I said before, we're in a fact finding hearing, so what we're here to hear is evidence, not opinions. This is not a zoning

hearing where people get up and make statements. It's an evidentiary hearing. So,

I'm not sure there's any distinction about what her knowledge is either as a DCCA representative or on her own behalf. knowledge is -CHAIRMAN BRODSKY: she's not speaking -- okay. As long as If you're cool Just want to Her

with it, then I'm cool with it.

Neal R. Gross & Co., Inc. 202-234-4433

Page 338 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 we. MS. DIENER: MR. HIBEY: Yes. Why does the Dupont make sure. Okay. Go ahead, Ms. Diener. Okay. You said that

MR. HIBEY:

you oppose termination of the Voluntary Agreement? MS. DIENER: MR. HIBEY: We do. Okay. And you said

Circle Citizens Association oppose termination of the Voluntary Agreement? MS. DIENER: We oppose termination And in

of Voluntary Agreements in principle.

this case actually it's our fear that Jamie's excellent Hank's Oyster Bar, which has proven to be very well managed and operated, is being used as a little bit of an excuse to get rid of a VA that in fact is not needed, but will then result in other VAs that are needed being much more easily terminated. So I have no way

to prove that, but that's what we're afraid Neal R. Gross & Co., Inc. 202-234-4433

Page 339 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 of. MR. HIBEY: Do you think that

termination of the Voluntary Agreement will adversely impact the neighborhood? MS. DIENER: I do for the reason

that other establishments may then have -other establishments that don't behave as well, that aren't as well managed, that don't abide by rules and regulations as well will then be without Voluntary Agreements because they'll be rescinded or -- rescinded is not the right term -- terminated more easily, so there will be more impacts on the neighborhood, not necessarily from Ms. Leeds' establishment, but from others who will benefit from her good operation. Why should

they benefit from that, and then negatively impact potentially others in the neighborhood? I think that we worked for a long time in our neighborhood to get a good balance of businesses and restaurants. We had the

moratorium come in and that was hard to deal Neal R. Gross & Co., Inc. 202-234-4433

Page 340 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Kline. MR. KLINE: So if I understand Diener. MS. DIENER: Good evening, Mr. with at first, but over time things have stabilized. And both the moratorium and the

Voluntary Agreements I think have resulted in frankly what everyone's testified to, a wonderful well-balanced vibrant neighborhood. MR. HIBEY: MR. KLINE: Thank you. Good evening, Ms.

your testimony, you're not concerned with Jamie terminating her VA, you're concerned with other people who might seek to do the same. Is that correct? MS. DIENER: MR. KLINE: Right. All right. And you

originally wrote a letter to the Board on June 28th concerning this Voluntary Agreement, correct? MS. DIENER: MR. KLINE: Yes. And you wrote that

Neal R. Gross & Co., Inc. 202-234-4433

Page 341 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 purpose? MR. HIBEY: This has no relevance. Mr. Kline? letter on behalf of the DCCA, correct? MS. DIENER: MR. KLINE: MS. DIENER: MR. KLINE: Yes. Yes.

Is that correct? Yes. Isn't it a fact that

at that point you were not authorized to write such a letter on behalf of DCCA? MR. HIBEY: Objection. For what

CHAIRMAN BRODSKY:

CHAIRMAN BRODSKY: MR. KLINE: a representative.

She's testified she's

I think certainly her

credibility as a representative is at issue. They put it at issue. CHAIRMAN BRODSKY: Mr. Hibey,

because I'm inclined to believe him. MR. HIBEY: She's been dismissed. She's She

The letter has nothing to do with this. testified today that she's authorized.

has a letter on letterhead from the Dupont Neal R. Gross & Co., Inc. 202-234-4433

Page 342 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Circle Citizens Association. If you want to

ask her if she was unauthorized then, what does that have to do with this? CHAIRMAN BRODSKY: Do you have a

letter from Ms. Diener that authorizes her to speak on behalf of the DCCA on this? MR. HIBEY: The letter's on

letterhead and she's told me she's authorized. MS. DIENER: For testimony. Mr. Kline?

CHAIRMAN BRODSKY: MR. KLINE: sustained or overruled? CHAIRMAN BRODSKY: you think about that? MR. KLINE: point is this:

Is the objection

I mean, what do

Well, I think the

She's been proffered as a My

witness testifying on behalf of DCCA.

question goes to whether she from time to time perhaps exceeds her authority before the Board to act on behalf of DCCA. impeachment. CHAIRMAN BRODSKY: I'm not so sure It goes to

Neal R. Gross & Co., Inc. 202-234-4433

Page 343 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 why you didn't say this to me when I first asked you earlier on whether or not you had a problem with her speaking on behalf of DCCA. I guess at that point it didn't matter. MR. KLINE: Because then you You made

wouldn't let me ask this question. it relevant. CHAIRMAN BRODSKY: where we started.

Now we're back

Holy cannolis. I I

Well, look, I raised it first. think it's a very fair question, you know?

mean, Ms. Diener, if you're up there speaking as an official representative of a community group that has legal authority and weight and gravitas, that's different than you speaking as Robin Diener, concerned citizen. So, if

you could produce something for me that says that you're speaking on behalf of the DCCA as its authorized representative to speak for it in this capacity, I'm all ears and eyes. take a look at whatever you got for me. I'll If

not, then I'm inclined to agree with Mr. Kline Neal R. Gross & Co., Inc. 202-234-4433

Page 344 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 good start. MS. DIENER: Okay. Yes. That's And and ask that you speak as you and not as a representative of DCCA. MS. DIENER: what I could produce. Well, I don't know Would it be an

instruction by the Board for me to represent them? CHAIRMAN BRODSKY: Yes, that's a

not how we operate, so I don't have that.

the letter, if you want me to answer, on June 28th, that was sent, was representing the historical position -CHAIRMAN BRODSKY: MR. KLINE: Mr. Kline?

(Off microphone.) Yes. Hang on.

CHAIRMAN BRODSKY: Hang on, Ms. Diener. Hang on.

MS. DIENER:

-- of DCCA. Ms. Diener, no,

CHAIRMAN BRODSKY: no, no, no, no. MS. DIENER:

I'm sorry. Don't go there.

CHAIRMAN BRODSKY:

Neal R. Gross & Co., Inc. 202-234-4433

Page 345 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 objection. finished. yet. Go ahead, Mr. Hibey. MR. HIBEY: If I could ask the When he said he MS. DIENER: Okay. Don't go there

CHAIRMAN BRODSKY:

witness a couple questions.

had no problem with the authority, I didn't get into that, but I can ask her a couple questions to try to lay the foundation if she has the authority. CHAIRMAN BRODSKY: all eyes and ears. MR. KLINE: I mean -MR. HIBEY: That's because you You said fine Mr. Chairman, he's Sure. Yes, I'm

didn't raise this objection. she could testify. MR. KLINE:

I wasn't raising an I'm

I'm now questioning her.

cross-examining her.

She's been tendered as

a witness who has authority and I'm now crossexamining on that authority, which I think is Neal R. Gross & Co., Inc. 202-234-4433

Page 346 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 anything. CHAIRMAN BRODSKY: Okay. So you my right. To say, oh, sorry, we missed it. Give us another chance. I didn't miss

We didn't get to it. MR. HIBEY:

can continue to question her on her authority. MR. KLINE: All right. So the

fact of the matter is when you wrote the letter on June 28th you didn't have authority to write that letter, did you? MS. DIENER: mean by that. I don't know what you

I am the official

representative, the president of the Dupont Circle Citizens Association and its spokesperson. I represented in that letter

what I knew to be the historical position of the DCCA on VAs. MR. KLINE: All right. You

intended that letter as a protest letter, correct? MS. DIENER: I did not understand

that protest was the only avenue open to us. Neal R. Gross & Co., Inc. 202-234-4433

Page 347 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 another way. MS. DIENER: MR. KLINE: Yes. You intended that You had sent us a letter to amend or terminate and I thought we could agree to amend -MR. KLINE: me ask it another way. MS. DIENER: -- so I didn't see it All right. Well, let

as a protest, but I understand now in retrospect that that in fact is what it is. MR. KLINE: Okay. Let me ask it

letter as opening the door for DCCA to participate in the process, correct? MS. DIENER: MR. KLINE: Yes. All right. At that

point there had been no meeting of DCCA concerning this issue, had there been? MS. DIENER: discussions of it, yes. MR. KLINE: Isn't it a fact that There had been

this wasn't taken up until a meeting on July 22nd of 2010? Neal R. Gross & Co., Inc. 202-234-4433

Page 348 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 it, are you? MS. DIENER: MR. KLINE: No. You act pursuant to MS. DIENER: formally for a vote, yes. MR. KLINE: And that was the first It was taken up

time it was taken up formally for a vote, correct? MS. DIENER: No, it was not.

First time taken up formally for a vote, yes. MR. KLINE: All right. So when

you wrote the letter on the 28th you really didn't have authority from the organization, did you? MS. DIENER: the authority. MR. KLINE: Dupont Circle Citizens I believed that I had

Association is an incorporated citizens association, correct? MS. DIENER: MR. KLINE: Yes. You're not the czar of

the direction of the members and/or board of Neal R. Gross & Co., Inc. 202-234-4433

Page 349 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 the directors of the association, correct? MS. DIENER: together, right. MR. KLINE: And in the absence of Yes. We work

any decision by those bodies, you don't have authority to act, do you? CHAIRMAN BRODSKY: Let's be a

little bit more clear, Mr. Kline. MS. DIENER: it's not how we operate. CHAIRMAN BRODSKY: question a little more clearly. MS. DIENER: Okay. So you do have Let's ask the I don't know, because

CHAIRMAN BRODSKY: authority to act, right? phone if it rings, right? things? MS. DIENER: Yes.

You can pick up the So you can do some

CHAIRMAN BRODSKY:

But the

question is in order for the DCCA to get engaged in a protest process, to formally engage, I'm assuming for the moment that you Neal R. Gross & Co., Inc. 202-234-4433

Page 350 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Diener. questions. MS. DIENER: The presidents need to take a vote and the board has to be behind it and then you can move forward as an organization, correct? Isn't that how it

normally works for every other community group that I've ever come in contact with? MS. DIENER: of procedures like that. CHAIRMAN BRODSKY: stops you from going rogue? MS. DIENER: Well, nothing. And So then what We don't have a set

that happens a lot actually with all kinds of groups. CHAIRMAN BRODSKY: No further

believe that they are the spokespeople and they make statements to reporters all the time and to others in the community all the time. CHAIRMAN BRODSKY: That's cool. MS. DIENER: But subsequently the All right, Ms.

board agrees that they supported a position. Neal R. Gross & Co., Inc. 202-234-4433

Page 351 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 ahead. MEMBER GANDHI: Thank you. I just CHAIRMAN BRODSKY: I understand.

You have any other questions, Mr. Kline? MEMBER GANDHI: -- oh, I'm sorry. CHAIRMAN BRODSKY: Mr. Gandhi, go Thanks. I really

really want to focus in on the question that counsel asked you first. Do you have any

issue with the termination of this Voluntary Agreement? I'm not talking about the domino

effect later, but this particular Voluntary Agreement with Hank's. MS. DIENER: Voluntary Agreement -MEMBER GANDHI: MS. DIENER: Yes. Insofar as it is a

-- which we believe

are useful and helpful and do not -- to my knowledge Jamie has not -MEMBER GANDHI: I understand you

believe in Voluntary Agreements. MS. DIENER: -- stated that it

Neal R. Gross & Co., Inc. 202-234-4433

Page 352 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 harms her. MEMBER GANDHI: I understand you I understand But as

believe in Voluntary Agreement. that and I respect that.

I really do.

it relates to this one, she doesn't want it anymore. She petitioned the Board to So that's all I'm talking

terminate it. about.

MS. DIENER:

This is not a

commentary on her performance or her establishment. But yes we would not want it

to be terminated because we believe it should be in place. It's useful for the community.

It's a form of call it insurance or good graciousness -MEMBER GANDHI: heard you before -MS. DIENER: -- on the part of an But I thought I

operator, that they want to meet the neighbors halfway or more to deal with their concerns. MEMBER GANDHI: But I thought I

heard just a few minutes before that you did Neal R. Gross & Co., Inc. 202-234-4433

Page 353 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 being clear. MEMBER GANDHI: MS. DIENER: Okay. being clear. MEMBER GANDHI: MS. DIENER: I'm sorry? say that it's not this establishment, but it's other establishments that may be acting not in a right behavior or badly. MS. DIENER: But that we need to

therefore keep all the Voluntary Agreements. MEMBER GANDHI: Keep those

Voluntary Agreements, but how about this establishment? earlier -MS. DIENER: Okay. -- and now you're I mean, I heard one thing

MEMBER GANDHI:

telling me something else a little bit different. So, I just want to make sure that

I understand your position. MS. DIENER: I am perhaps not

I am perhaps not

Forgive me. No, maybe it was

MEMBER GANDHI:

Neal R. Gross & Co., Inc. 202-234-4433

Page 354 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 me. MS. DIENER: thing in case it helps. I'll try one more Jamie said to me,

well, you know, I would behave just as I do now if I did not have a Voluntary Agreement. And so my response is then why not have the Voluntary Agreement if it contributes to well being in the community and the neighbors appreciate it and it helps you to work together? MEMBER GANDHI: What provision in

the Voluntary Agreement, ma'am? MS. DIENER: What -Is there any

MEMBER GANDHI:

specific provision that you believe protects the community per se, quote/unquote? MS. DIENER: negotiate these things. MEMBER GANDHI: have that power? So you like to It's the ability to

You like to have the power

of negotiating with the VA? MS. DIENER: I think that the

Neal R. Gross & Co., Inc. 202-234-4433

Page 355 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 question. neighborhood feels reassured by having some -I don't want to use the word "leverage," but ability to come to the table to discuss these things. MEMBER GANDHI: And that only

happens if you have the Voluntary Agreement? MS. DIENER: Well, not for sure.

A great operator may be perfectly available every time we call to meet with you and resolve problems, but -MEMBER GANDHI: Okay. Last

There was a lot of conversation

about the outdoor deck and the use of the outdoor deck. MS. DIENER: The patio, right? The patio. Sorry.

MEMBER GANDHI: Late night hours.

Can you give me your

opinion or DCCA's -- give me your opinion -MS. DIENER: Sure. -- on the lateness

MEMBER GANDHI: of the outdoor patio. MS. DIENER:

My opinion as to?

Neal R. Gross & Co., Inc. 202-234-4433

Page 356 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 the ANC. operation. MS. DIENER: Well, I think the MEMBER GANDHI: Hours of

Dupont Circle ANC's guidelines are appropriate. MEMBER GANDHI: I didn't ask about

I just asked about you. MS. DIENER: No, but those

guidelines are the ones that -MEMBER GANDHI: I don't even know

what those guidelines are, to be honest with you. So I'm just asking on your specific -MS. DIENER: I think the outdoor

hours absolutely need to be restricted. MEMBER GANDHI: MS. DIENER: neighborhood will bear. the ANC guidelines. MEMBER GANDHI: MS. DIENER: guidelines on outdoor. CHAIRMAN BRODSKY: Mr. Jones? Okay. To what?

To what the But it may be -- to

The ANC has

Neal R. Gross & Co., Inc. 202-234-4433

Page 357 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 sir. MEMBER JONES: MS. DIENER: MEMBER JONES: Question, ma'am. Chairman. CHAIRMAN BRODSKY: You're welcome, MS. DIENER: I'm sorry. I don't

know them off the top of my head. MEMBER GANDHI: I don't know. I

didn't know they had guidelines. MEMBER JONES: Thank you, Mr.

Yes? So just to make

sure I'm clear, right now you're speaking on behalf of the organization, representing the DCCA? MS. DIENER: MEMBER JONES: Yes. Okay. The

Voluntary Agreement has certain terms in it right now that DCCA is supportive of? MS. DIENER: MEMBER JONES: Yes. Okay. Would you be

opposed to altering those terms? MS. DIENER: Absolutely not.

Neal R. Gross & Co., Inc. 202-234-4433

Page 358 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 MEMBER JONES: MS. DIENER: MEMBER JONES: MS. DIENER: Okay. We asked to be part. Okay. And so we look

forward to amending the agreement with Hank's. MEMBER JONES: Okay. As far as

your organization is concerned, let's start with the most salient, most important thing to you about that modification to the Voluntary Agreement that you feel will protect peace, order and quiet, property values or what have you. Is it operating hours? Is it space?

Number of seats? outdoor area?

Is it standing on the

What is the most important

thing to you and your organization? MS. DIENER: as it stands? MEMBER JONES: Within what you Within the agreement

would be comfortable with accepting in the amended agreement that you spoke of you would be interested in working out with. And I

don't want to get into negotiations, where Neal R. Gross & Co., Inc. 202-234-4433

Page 359 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 I'm asking. MS. DIENER: MEMBER JONES: Yes. I want to know everything's going to be. I just want to

understand what the most important point to you is. MS. DIENER: The most important --

well, you're not going to like this answer. The most important point is to be able to negotiate. So, for us -MEMBER JONES: No, that's not what

specifically within the terms, right, what of those terms, or which term or terms are the most important things to you as it relates to this particular establishment, not the ability to negotiate, the terms specifically that you would be negotiating. What is the most

important term that you find? MS. DIENER: what you're saying. MEMBER JONES: MS. DIENER: Okay. But what we Right, I understand

Neal R. Gross & Co., Inc. 202-234-4433

Page 360 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 appreciate is that when an establishment comes to us and says we'd like to change thus and such in our agreement, that we can then look at it and evaluate it and say, well, if you do that, say if you expand, if you bring this many more seats in, if you increase your hours, there are some other things we'd like to see for the community. And this is where

the black wrought iron fence comes in, I think. It's a small thing, but in exchange

for allowing an establishment to expand or to open, we'd like this little $200 contribution or whatever it is of a nice black wrought iron fence to enhance the neighborhood. It's tiny.

It's a tiny concession, but those are really the only kinds of things that we can seek through this. So being consulted, being able

to weigh in and say these are our concerns, this is what we would consider important. And, you know, in a case like Hank's, everybody likes the establishment. Neither DCCA nor the neighbors want to be seen Neal R. Gross & Co., Inc. 202-234-4433

Page 361 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 as holding up Hank's from expanding if it can be done in such way that has minimal impact on the community. And so for instance, something

I would ask for if I were doing these negotiations is some sort of sound abatement, plantings or other innovations, some of which are currently starting to be used, be put into place so that the next door neighbors perhaps don't get quite as much noise as they might otherwise. MEMBER JONES: would be a term? MS. DIENER: That would be Great. So that

something we would ask for. MEMBER JONES: something in -MS. DIENER: MEMBER JONES: you would ask for? In this case. -- this case that That would be

And would you be asking

for that specifically because you have noise concerns about this establishment? MS. DIENER: For the --

Neal R. Gross & Co., Inc. 202-234-4433

Page 362 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 MEMBER JONES: Or noise concerns

in general about operators that operate -well, late hours or early morning hours. MS. DIENER: In this case

specifically for the next door neighbors. MEMBER JONES: related to Hank's? MS. DIENER: MEMBER JONES: MS. DIENER: MEMBER JONES: MS. DIENER: Yes. Okay. So specifically

In this case. All right. And if I may say very

briefly, this is one of the things that DCCA ends up handling. It's individuals who are

disproportionately impacted who live next door or across the street, these various hot spots all over our territory. Those are the people They're the

who come to us and ask for help.

ones that no one else will stand up for because, you know, we want Lauriol Plaza, we want Hank's. You know, in general the

neighborhood wants this, but there are a few Neal R. Gross & Co., Inc. 202-234-4433

Page 363 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 people who really bear the brunt of it and they don't want it, and there's really no one to stand up for them. MEMBER JONES: MS. DIENER: Okay. So DCCA can help by

coming to the table, assisting, trying to have people be reasonable on both sides in hopes that we can both support more business and provide some protections to those most directly affected. MEMBER JONES: Okay. And

specifically you mentioned the word "concessions." MS. DIENER: MEMBER JONES: Yes. And you were using

that in terms of the wrought iron and how that would I guess beautify the community? MS. DIENER: MEMBER JONES: Yes. And you felt like

that wasn't too much to ask of the Licensee to do that to contribute to the community? MS. DIENER: Right.

Neal R. Gross & Co., Inc. 202-234-4433

Page 364 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 would be -MS. DIENER: -- broken glass MEMBER JONES: Now that's not

specifically related to peace, order and quiet, but would you consider that to be related to property values? it in. MS. DIENER: it goes with the -MEMBER JONES: You do? So, that Well, I do. I mean, I'm trying to fit

theory that the other gentleman was expounding. I mean, you have ugly tree boxes It, you know, doesn't

overgrown and a mess.

make the neighborhood look as good. MEMBER JONES: MS. DIENER: Okay. And brings down

values, whereas a nicely tended box is good for the tree and looks good. MEMBER JONES: Okay. I can

rationalize that in my mind. much. I appreciate that. MS. DIENER:

Thank you very

You're welcome.

Neal R. Gross & Co., Inc. 202-234-4433

Page 365 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Chairman. CHAIRMAN BRODSKY: You're welcome. MEMBER JONES: Thank you, Mr.

Any other questions, Board? (No audible response.) CHAIRMAN BRODSKY: Yes, Mr. Kline? MR. KLINE: Ms. Diener, just so Gentlemen?

I'm clear, you said nobody wants to be seen holding up Hank's, correct? MS. DIENER: MR. KLINE: Right. But you're willing to

hold up Hank's for a $200 wrought iron grate, correct? MS. DIENER: Hank's did not come

to us to discuss amendments, so no, we -MR. KLINE: No, but the original

Voluntary Agreement required them to -MS. DIENER: Which I was not a

part of, so I don't know how that went. MR. KLINE: But your organization

was a part of it, correct? Neal R. Gross & Co., Inc. 202-234-4433

Page 366 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 ANC, yes. MR. HIBEY: referencing earlier? MS. DIENER: MR. HIBEY: hours guidelines? Neal R. Gross & Co., Inc. 202-234-4433 Yes, thank you. And where are the Is that what you were MS. DIENER: MR. KLINE: further questions. MR. HIBEY: follow-up question. I have just one Yes. Okay. Thank you. No

I'm showing you

something, and let me know if you recognize it. CHAIRMAN BRODSKY: I think you got

to show it to Mr. Kline first, sir. MR. HIBEY: MS. DIENER: Yes, I got a copy. These are the

guidelines for public space outdoor caf‚s recommended by the ANC. MR. HIBEY: you were referencing? MS. DIENER: From Dupont Circle Okay. Is that what

Page 367 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 MR. KLINE: it's irrelevant. CHAIRMAN BRODSKY: do you think about that? MS. DIENER: I'm trying to address Mr. Hibey, what Object on the grounds

the Board's question about the ANC guidelines. MR. KLINE: a question -CHAIRMAN BRODSKY: we had a question about that. MR. HIBEY: I thought the question I don't know I don't think The Board didn't have

was what are the ANC guidelines? what they are. CHAIRMAN BRODSKY:

Yes, well

there's no question from the Board for that, but thank you for checking in with that. MR. HIBEY: Okay. We had no

CHAIRMAN BRODSKY: question about it. MR. HIBEY:

I'll still continue.

I think it's relevant in that we think the guidelines are a factor to consider in the Neal R. Gross & Co., Inc. 202-234-4433

Page 368 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 adverse impacts of terminating the Voluntary Agreement. CHAIRMAN BRODSKY: I'm not so sure

this witness is going to do that by testifying from ANC guidelines. I'm still kind of hung

up on his relevancy question. MR. HIBEY: Yes, because earlier

she said that the ANC guideline hours are the appropriate hours and later hours would adversely impact the neighborhood. CHAIRMAN BRODSKY: MR. HIBEY: guideline hours. And?

And these are the ANC

No one knows what -- she

didn't even know what they were. CHAIRMAN BRODSKY: relevant to the case? MR. HIBEY: Because terminating How is that

the Voluntary Agreement will allow the hours to go beyond the ANC guideline hours. The ANC

guideline hours are the same as the hours that are in the Voluntary Agreement. CHAIRMAN BRODSKY: Okay. Yes,

Neal R. Gross & Co., Inc. 202-234-4433

Page 369 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 minute. Neal R. Gross & Co., Inc. 202-234-4433 just keep it tight. I got you. Mr. Chairman, the

MR. KLINE:

notion that ANCs can pass guidelines and somehow we have a mini set of regulations within each neighborhood I strenuously object to. The Council and this Board recommending And I

to the Council makes the regulations.

have always objected to the notion that, hey, we have our neighborhood over here. We have

our own little set of regulations that we want you to abide by. That's not the law and it's

just completely irrelevant. CHAIRMAN BRODSKY: Yes, I just

think that what they're trying to establish is that there's community guidelines out there that the ANCs have. I personally don't

understand the relevance to it, but I don't believe it to be irrelevant to the fact that she couldn't say it. hour on it. MR. HIBEY: I'll be done in a Please don't spend an

Page 370 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 check it. CHAIRMAN BRODSKY: understand, Mr. Kline. But I don't

I don't understand how

it hurts for her to say it. MR. HIBEY: Okay. In front of

you, are those the ANC 2B guidelines? MS. DIENER: MR. HIBEY: Yes. And there is a

guideline hour for closing of sidewalk caf‚ outdoor restaurants? MS. DIENER: where they're located. Yes, depending on If they're across the

street from or approximate to residentiallyzoned blocks they recommend 11:00 p.m. Sunday through Thursday and 12:00 midnight on Friday and Saturday. MR. HIBEY: Does the Voluntary

Agreement incorporate the ANC guidelines? MS. DIENER: MR. HIBEY: MS. DIENER: I'm not positive. Can I show you -I have not -- I can

I've got it right in front of me. MR. KLINE: I think we can all

Neal R. Gross & Co., Inc. 202-234-4433

Page 371 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 all good? (No audible response.) CHAIRMAN BRODSKY: Okay. Ms. right. question. CHAIRMAN BRODSKY: Good. Any other questions? The Board Okay. All it? CHAIRMAN BRODSKY: moving on, Mr. Hibey. this. MR. HIBEY: That's the last Just keep read. MS. DIENER: So we can all read

Don't get caught up in

Diener, thank you so much for your time today. Much appreciated. MS. DIENER: Thank you. Mr. Kline,

CHAIRMAN BRODSKY:

you're going to start us off with a closing statement? MR. KLINE: Yes. As I said at the

outset we are here today to consider whether Neal R. Gross & Co., Inc. 202-234-4433

Page 372 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 the Voluntary Agreement that was entered into by Hank's Oyster Bar should be terminated. The Board has already determined that what's relevant in making the determination is to whether it be terminated is whether the termination would have an adverse impact on the neighborhood. Now, I think we disagreed a little bit about what the standard is, but frankly I like their standard better, because in terms of what's been proven today I don't think there's any doubt whatsoever based on the testimony that the Board's heard that termination of this Voluntary Agreement is not going to have any adverse impact on the neighborhood based upon the appropriateness criteria. The Board heard from Ms. Leeds who testified about how she runs her operation. She was at this point unsure as to what her plans for changes might be. As the Board is

aware, there already is a request for Neal R. Gross & Co., Inc. 202-234-4433

Page 373 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 expansion, and that's not relevant today. We'll get to that in a few weeks. But in

terms of termination of the agreement, I think it's pretty clear the testimony from the three witnesses on the part of the Licensee, makes it clear that this establishment is currently operated, does not have an adverse impact. And if there are any changes that arise as a result of the termination of the Voluntary Agreement, Ms. Leeds testified pretty clearly that if they caused any adverse impact she's going to react and deal with it. What the District needs and what the District has in this case is a responsible operator. The notion that Voluntary

Agreements somehow make responsible operators is ridiculous. Now, I agree that under

certain circumstances certain operators, they need to be reined in. question about that. There isn't any We're not saying that

under no circumstances is it appropriate for there to be an additional level of controls on Neal R. Gross & Co., Inc. 202-234-4433

Page 374 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 certain operators. But in this situation,

with this operator, it's just frankly not needed. And I think that the Board perhaps

can use its energies on operators for which conditions are needed and we would request that the Voluntary Agreement be terminated. Thank you. CHAIRMAN BRODSKY: Mr. Hibey? MR. HIBEY: I wanted to thank the Thank you.

Board for staying until 6:30, almost 7:00 tonight. I appreciate that. What I first want to say is the standard that the Board must use, it's been discussed already. I'm not going to get into

it again, but my objection continues that the Applicant must prove three things and the burden's on the Applicant for the Board to then make these three findings. And there has

been no evidence of the first finding related to the good faith negotiations. There has been no evidence related Neal R. Gross & Co., Inc. 202-234-4433

Page 375 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 to the second finding where there must be a need for this termination. But the Board has I'm

decided not to hear testimony on that. not sure how the Board can make those findings.

Moving onto the third item, the Board must find that termination of the Voluntary Agreement will not adversely impact the neighborhood, and the burden is on the Applicant. And the Applicant hasn't put forth

any evidence that termination will not adversely impact the neighborhood. The first two witnesses from the Applicant have never seen the Voluntary Agreement. They don't know what protections They

or what's in the Voluntary Agreement.

have no testimony on how termination of the Voluntary Agreement will impact the neighborhood. The third and final witness, the operator, she testified she doesn't know what she's going to do if the Voluntary Agreement Neal R. Gross & Co., Inc. 202-234-4433

Page 376 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 is terminated. That's not evidence for you to

make a finding that termination will not adversely impact. Because you cannot make

these findings, you cannot grant the application to terminate the Voluntary Agreement. And I'll go back just briefly to what the Board has determined the statute reads, is that any bar or restaurant can come back to the Board after a Voluntary Agreement has been negotiated and entered and say we're a good operator, so now we can terminate. That's not what the statute says. The statute

requires that has to at least be a need to terminate. And there is no need here because

she says the Voluntary Agreement doesn't restrict her at all. But I understand the Board has decided not to address that issue, so I'll just in closing say there is no evidence on which the Board could find that the termination will not adversely impact the Neal R. Gross & Co., Inc. 202-234-4433

Page 377 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Neal R. Gross & Co., Inc. 202-234-4433 here. much. Thank you all for being here. It's late for all of us, right? very much. So, thank you neighborhood. Thank you. Thank you very

CHAIRMAN BRODSKY:

You guys sat through the whole I didn't

thing back there, so that's good.

even catch you nodding off one time back there. That's good. So, thanks everybody for being We're going to take this matter under

advisement and we'll get back to you guys. MR. KLINE: Thank you. Thank you.

CHAIRMAN BRODSKY:

(Whereupon, the hearing was concluded at 6:41 p.m.)

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A abatement 361:5 ABC 57:15 70:7 97:22 98:18 99:19 99:20 105:22 106:7 111:21 257:13,14 261:22 285:19 288:2 326:6 Abdi 2:15 231:19 abide 170:22 171:4 171:9 339:9 369:11 abiding 171:10 ability 135:6 141:22 142:17 177:14 308:17 354:17 355:3 359:15 able 63:4 114:20 126:16 136:11,22 141:8 162:1 165:13 175:22 176:1,15 188:20 200:12 207:9,10 276:4 317:10 359:6 360:17 ABRA 1:22 33:2 73:6 78:19 100:20 100:22 101:10 105:7,17 189:18 255:4 262:14 267:2,17 268:3 269:6,13,20 330:3 ABRA's 325:5,19 327:9 329:2,17 331:11 ABRA-related 269:14 absence 10:4 261:3 317:19 349:4 absent 321:8 absolute 75:3 absolutely 18:9 89:16 117:12 120:7 131:11 140:18 252:4 260:6 270:1,4 277:14 293:9 307:19 311:6 356:14 357:22 abuses 211:15 academic 216:10 accept 19:19 52:20 53:19 55:2 197:18 242:1 acceptable 38:4,13 accepting 332:1 358:19 accurate 141:21 accurately 213:10 achieved 15:5 acid 87:10 acquaint 71:18 act 129:21 342:20 348:21 349:6,15 acting 353:2 action 7:16 9:19 actions 311:4 activist 285:4 activity 316:17 actual 62:20 132:13 298:11 Adams 83:8 add 9:15 10:11 11:3 15:1 250:10 257:19 333:5 added 150:18 adding 48:7 addition 14:18,22 24:14 37:2 67:13 136:22 256:3 262:18 276:2 additional 31:3 155:4 172:11,14 173:22 174:1 175:12,13,19,21 176:17 177:1 309:21 331:2 373:22 address 64:7 73:21 78:6 101:8 116:17 117:4 127:17 157:5 264:20 367:5 376:19 addressed 14:18 15:5,10 257:7 262:14 266:9 268:20,21 addresses 79:17 170:18 213:5 adjacent 211:9 233:7 235:1,14 237:14 241:8,17 administration 96:20 129:7 administrative 204:20 206:6,14 214:20 215:4 254:21 255:4,18 admirable 199:8 admire 234:8 admission 60:16 admitted 259:7 advantage 162:6 adverse 8:5 13:15 20:14 21:3 22:13 54:19 60:7 80:17 83:19 85:21 87:1 89:3 114:9,15,21 115:19 154:11 208:10,15,21 211:12 227:10 260:12 368:1 372:6,15 373:7,11 adversely 197:2 218:7,20 223:19 259:18,19 260:11 274:4 339:4 368:10 375:8,12 376:3,22 advisability 212:16 advisement 89:22 377:12 Advocacy 210:12 affect 97:21 215:14 224:1 228:21 247:6 274:4 311:17 affidavit 36:14 40:6,9,11 41:1 47:20 48:3,6 272:19 affirm 96:12 agreement 1:10 116:10 127:12 3:19 6:5,9 7:3,6,9 156:20 209:11 8:4,17,19 11:1,17 220:8 231:11 13:6,14 14:14 249:11 334:13 15:2,4 17:15 19:4 affluent 120:17 27:22 29:15 30:10 affordable 210:14 33:4 34:4,17 35:2 afraid 66:5 338:22 36:7,10,13,18,20 afternoon 3:8,17 37:11,16 38:5 101:18 102:22 40:16 41:11 42:11 104:15 111:10 46:18 48:18 49:11 123:5 139:7,8 52:22,22 53:8,10 169:4 209:18,21 54:13 57:22 58:8 220:14 231:7,8,17 60:9 63:13 64:3,6 236:12 249:18 64:11,21 65:7 266:5 68:12 73:21 74:12 age 283:5 75:5,22 85:7 87:4 agencies 73:5 87:11,13 91:16 agency 74:22 92:19 97:5 100:15 323:14 106:11 107:15 agenda 66:17 67:3 108:9,15 112:5,18 67:7,7,8 113:10,13,21 agendas 144:4 114:4,8,11,12,15 agitated 322:12 114:17,20 115:16 ago 4:18 33:16 53:2 123:8,11 125:11 72:2 73:15 111:15 125:12 143:7 113:11 115:19 146:17,18 147:18 117:9 119:15 148:11 164:17 164:10,17 241:4 165:9,10 169:6,12 Agora 108:3 135:1 169:16 170:10,13 135:8,9,15,18 170:14,18,22 136:1,18 140:1 171:4,8,13,22 168:4 193:18 194:2,7,11 agree 43:16 44:12 194:16 195:4,8,18 59:2,5 66:18 71:6 196:7 197:1 198:6 90:11,14,16,18,20 204:4 205:15 91:5,15 92:7,11 208:12,14 212:18 92:13,21 93:2,4,6 213:4,18,20 215:9 93:8 143:12 265:5 215:13 218:6,20 266:21 267:1 223:14,18 227:11 282:19 315:10 228:3 230:3,6,6,8 343:22 347:2 232:10,14,17 373:17 233:1 236:17 agreeable 44:5 237:22 246:15,21 agreed 19:16 260:7 247:6 250:15,19 262:1 263:11,11 255:2 256:16,19

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Neal R. Gross & Co., Inc. 202-234-4433

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