Hanks VAOrder ABCBoard Nov 32010

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DISTRICT OF COLUMBIA
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ALCOHOLIC BEVERAGE CONTROL BOARD
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MEETING
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:
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.

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

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1 P-R-O-C-E-E-D-I-N-G-S
2 1:08 p.m.
3 CHAIRMAN BRODSKY: Calling our
4 next case, please. 10-PRO-00094, Leeds the
5 Way, LLC, trades as Hank's Oyster Bar.
6 Parties forward. Introductions,
7 please?
8 MR. KLINE: Good afternoon.
9 Andrew Kline, non-lawyer representative on
10 behalf of the Licensee.
11 MS. LEEDS: Jamie Leeds.
12 MR. KLINE: Principal of the
13 Licensee.
14 CHAIRMAN BRODSKY: Thank you for
15 being here.
16 MS. LEEDS: Hi.
17 MR. HIBEY: Good afternoon. Mike
18 Hibey here on behalf of the individuals
19 signatories to the Voluntary Agreement. Dave
20 Mallof is also here. He stepped out of the
21 room right before you called the case.
22 CHAIRMAN BRODSKY: So, the two

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1 groups I have as Protestants are a group of
2 five or more. Are you representing them?
3 MR. HIBEY: Yes.
4 CHAIRMAN BRODSKY: So, we have the
5 designated representative as Alexis Rieffel as
6 the designated representative. Is that person
7 here?
8 MR. HIBEY: He's not.
9 CHAIRMAN BRODSKY: Okay. Do you
10 have a letter from the Group of Five or More
11 stating that you're their designated
12 representative?
13 MR. HIBEY: I do not have a
14 letter.
15 CHAIRMAN BRODSKY: He did?
16 MR. HIBEY: I entered my
17 appearance into this matter about two weeks
18 ago.
19 CHAIRMAN BRODSKY: This guy
20 Alexis, or this guy Mr. Hibey? So, he's cool?
21 Okay. All right. You're good,
22 Mr. Hibey.

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1 And anybody else here for Hank's
2 Oyster Bar, Leeds the Way?
3 Mr. Hibey, who else?
4 MR. HIBEY: I believe Robin Diener
5 is walking into the room, and I'm not sure
6 whether --
7 CHAIRMAN BRODSKY: Are you coming
8 forward as the District Dupont Circle Citizens
9 Association?
10 MS. DIENER: Yes.
11 CHAIRMAN BRODSKY: Sure, come on
12 in. Have a seat up front at the grown up's
13 table. Your name, please?
14 MS. DIENER: My name is Robin, R-
15 O-B-I-N, traditional spelling, Diener, D-I-E-
16 N-E-R.
17 CHAIRMAN BRODSKY: And you're
18 representing Dupont Circle Citizens
19 Association?
20 MS. DIENER: Yes.
21 CHAIRMAN BRODSKY: Okay. And,
22 sir, your name?

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1 MR. MALLOF: Yes, I am David
2 Mallof, M-A-L-L-O-F. I'm a 27-year resident
3 of the District and I'm representing the Group
4 of Six original signatories of, and current
5 signatories of the Voluntary Agreement.
6 CHAIRMAN BRODSKY: This is a
7 protest hearing. The matter comes before the
8 Board as a protest of Hank's Oyster Bar's
9 petition to terminate its Voluntary Agreement.
10 We know the Licensee is being represented by
11 Mr. Andrew Kline. The Protestants are one, a
12 Group of Three or More Individuals who are
13 being represented today by Mr. -- spell your
14 last name for me?
15 MR. HIBEY: Hibey, H-I-B-E-Y.
16 CHAIRMAN BRODSKY: Thank you. And
17 also the Dupont Circle Citizens Association
18 represented by Robin Diener.
19 Before we get started, I
20 understand there are preliminary matters that
21 need to be dispensed with prior to the
22 parties' opening statements.

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1 The first is a Licensee's Motion
2 to Dismiss the Protest of Petition to
3 Terminate the Voluntary Agreement. This is
4 the first preliminary matter is the Licensee's
5 Motion to Dismiss the Protest of the Petition
6 to Terminate Its Voluntary Agreement.
7 The Licensee's Motion to Dismiss
8 asserts that the requirements for terminating
9 a Voluntary Agreement are the same as those
10 required to met for an initial application or
11 a substantial change in operation in that the
12 Board must find that the Licensee meets the
13 appropriate standards set forth in D.C. Code
14 Section 25-313.
15 Therefore, any person objecting to
16 an action involving the license must timely
17 notify the Board in writing of his or her
18 intention to object and is required to state
19 why the matter being objected to is
20 inappropriate under one or more of the
21 appropriateness standards set forth in D.C.
22 Code Sections 25-313 and 25-314.

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1 The Licensee alleges that the
2 letters of objection filed by the Protestants
3 fail to include any statement that the
4 termination of the Voluntary Agreement will
5 have an adverse impact on real property
6 values, peace, order and quiet, residential
7 parking needs, vehicular or pedestrian safety
8 or any of the other standards set forth in
9 D.C. Code 25-313 and 25-314.
10 Therefore, the Licensee requests
11 that the protests filed by the Protestants be
12 dismissed for failure to enumerate one or more
13 of these appropriateness standards.
14 The Protestants filed an
15 Opposition to Motion to Dismiss the Protest of
16 the Petition to Terminate the Voluntary
17 Agreement. The opposition asserts that the
18 requirements for terminating a Voluntary
19 Agreement are not the same as those required
20 to be met for an initial application or a
21 substantial change in operation. Instead, the
22 Protestants argue that the Board follows D.C.

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1 Code Section 25-446 which relates to Voluntary
2 Agreements and not to protests.
3 This section requires the Board to
4 make specific findings that are different from
5 those findings required for initial
6 applications or substantial changes. So, the
7 Protestants assert that they were not required
8 to file timely objections under the
9 appropriateness standards.
10 Does either party have any oral
11 remarks to make before the Board at this time
12 to supplement the written filings already
13 made?
14 MR. KLINE: Yes, just briefly. I
15 would add that if our motion is denied, we're
16 obviously left in sort of a quandary as to
17 what it is that we are to put on. Because
18 normally the issues before this Board with
19 respect to any action involving a license --
20 the issue is appropriateness and that
21 proceeding begins with protests filed on the
22 basis of appropriateness, and then of course

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1 gives the Licensee an opportunity to
2 understand which of the criteria of
3 appropriateness are being raised by the
4 Protestants. In the absence of that, the
5 Licensee is completely in the dark as to which
6 of the issues concerning the appropriateness
7 of the establishment are being contested by
8 the Protestants.
9 MR. HIBEY: If I could respond?
10 CHAIRMAN BRODSKY: Yes, please.
11 MR. HIBEY: We'd like to add that
12 there is no quandary here. The Licensee must
13 meet a burden that is spelled out by the
14 statute. Whether or not we're here, the
15 Licensee still must prove the same three
16 things that you must find. So, our protest
17 has nothing to do with whether he's in a
18 quandary or not.
19 But beyond that, we've said from
20 the beginning, at the roll call, at the status
21 hearing and throughout this process that we
22 object to termination of the Voluntary

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1 Agreement on all grounds.
2 CHAIRMAN BRODSKY: Anything to
3 add?
4 MS. DIENER: Well, yes, thank you,
5 Chairman.
6 CHAIRMAN BRODSKY: You're welcome.
7 MS. DIENER: And I just would like
8 to say I'm sorry there's no third table,
9 because DCCA is not represented by counsel and
10 we're here speaking on our own. And I am not
11 a lawyer, as will become clear if anyone asks
12 me any technical questions. I just simply
13 want to say that from the point of view of the
14 Dupont Circle Citizens Association this has
15 nothing to do with the excellent operation of
16 Hank's Oyster Bar, but rather the principle of
17 the usefulness of the Voluntary Agreement in
18 the neighborhood for our mixed-use
19 commercial/residential areas. Thank you.
20 MR. MALLOF: I have something to
21 say. I'd like to --

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1 Sir? Is this gentleman
2 representing your group?
3 PARTICIPANT: Yes.
4 CHAIRMAN BRODSKY: Okay. We're
5 good.
6 MR. MALLOF: Oh, shall I --
7 CHAIRMAN BRODSKY: No, no. If
8 you're speaking on behalf of everybody, okay.
9 We're good. Mr. Gandhi?
10 MEMBER GANDHI: Can you explain to
11 me how you laid out your opposition, how you
12 laid out -- I think you mentioned in the
13 remarks that you were opposed to the
14 termination, correct?
15 MR. HIBEY: Yes.
16 MEMBER GANDHI: How did you lay
17 that out and how did you let the Board know
18 that you were opposed? And how did you let
19 the Licensee know?
20 MR. HIBEY: I believe that goes
21 back to the initial papers that were filed in
22 this case before I was involved. My

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1 opposition doesn't lay out exactly what we
2 oppose other than we're going to oppose all
3 items they must prove. I believe the initial
4 objections have been the same from the
5 beginning, that we've always opposed
6 termination of the Voluntary Agreement.
7 MEMBER GANDHI: Did you base that
8 off of any of the appropriateness standards
9 listed on 25-313?
10 MR. HIBEY: Well, yes.
11 MEMBER GANDHI: How so? That's
12 what I'm asking.
13 MR. HIBEY: Well, our position is
14 that termination of the Voluntary Agreement
15 will have an adverse impact on the
16 neighborhood as determined under the
17 appropriateness standard.
18 MEMBER GANDHI: Okay. Great.
19 Where is that? Where did you say that except
20 for how?
21 MR. HIBEY: In --
22 MEMBER GANDHI: Again, did you say

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1 that in an email to the Board, in a letter to
2 the Board?
3 MR. HIBEY: I think that's in his
4 initial filings.
5 MEMBER GANDHI: Okay. Great.
6 MR. HIBEY: Which I didn't write,
7 so --
8 MEMBER GANDHI: Yes, I'd like to
9 see that.
10 MR. HIBEY: Yes, go ahead.
11 MR. MALLOF: The Board has on the
12 record a timely-filed objection based on the
13 placarding for termination from the current
14 signatories of the Voluntary Agreement. It is
15 a very detailed letter of objection, multi-
16 page. Mr. Kline also responded to it and we
17 included a detailed PowerPoint presentation in
18 addition that addressed all of his and the
19 Licensee's reasons for requesting termination.
20 That is on the record. That's about 15 pages,
21 sir.
22 And in addition, if I may please

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1 add, the whole premise of the Voluntary
2 Agreement was arrived at because of a lack of
3 appropriateness in our eyes, negotiations that
4 led to then the Voluntary Agreement. We
5 addressed appropriateness and achieved a
6 threshold of appropriateness that resulted in
7 a signature originally that -- all we felt we
8 needed to do as citizens was to respond to the
9 request to terminate. We already have a
10 baseline set of concerns that were addressed
11 regarding fundamental appropriateness of the
12 license at that time. So, we think we've got
13 the underpinning.
14 MEMBER GANDHI: Let me ask you a
15 question. I did read -- was it a Dupont
16 Circle Citizens Association letter? Correct?
17 MS. DIENER: From June?
18 MEMBER GANDHI: Yes.
19 MS. DIENER: Yes.
20 MEMBER GANDHI: I did read that.
21 Let me start there before I go to Mr. Mallof.
22 MS. DIENER: Okay.

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1 MEMBER GANDHI: Within that
2 letter, except for the first sentence in the
3 second paragraph where you sort of mention
4 peace, order and quiet, it didn't really have
5 to relate to that VA, but did you cite any of
6 the appropriateness standards in your letter,
7 ma'am?
8 MS. DIENER: I don't know.
9 MEMBER GANDHI: You don't know?
10 Okay. That's fair enough.
11 Mr. Mallof, this is the letter you
12 have dated June 28th?
13 MR. MALLOF: Yes, sir.
14 MEMBER GANDHI: Is there a way
15 that you can just point out in the few pages
16 that I have in front of me where you include
17 the appropriateness standard?
18 MR. MALLOF: We didn't feel
19 necessarily compelled to do that.
20 MEMBER GANDHI: Okay.
21 MR. MALLOF: The placard said --
22 and forgive me, let me just take this down a

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1 little bit of a notch. The placard said, sir,
2 to request objections to termination. We
3 looked at the statute. We looked at Mr.
4 Kline's filing. Mr. Kline's filing laid out
5 the very same statutory steps, I believe, that
6 Mr. Hibey's talking about now. We as
7 citizens, without counsel, responded to what
8 we believed were the statutory issues
9 regarding termination and we laid those out
10 here very specifically. And we attached, I
11 think, a very detailed and I hope credible set
12 of responses to that. We talk about the fact
13 that -- I think in here we talk about the fact
14 that the original finding of needing a
15 Voluntary Agreement was based on
16 appropriateness. It's sort of like to me
17 having to argue a second time why you were
18 involved in something the first time. I mean,
19 that's the whole premise here.
20 MEMBER GANDHI: Got it.
21 MR. MALLOF: That we're here
22 because of appropriateness.

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1 MEMBER GANDHI: I understand.
2 MR. MALLOF: Thank you.
3 MEMBER GANDHI: Mr. Kline, can I
4 ask you a quick question?
5 MR. KLINE: Sure.
6 MEMBER GANDHI: I did read through
7 your motion as well and is there a way you can
8 explain the basis that the appropriateness
9 standard is absolutely necessary here even
10 when you're talking about a termination of a
11 VA?
12 MR. KLINE: Yes, the whole
13 statutory scheme involving the issuance of
14 alcoholic beverages licenses, their transfer
15 and renewal, and substantial changes as well,
16 is all based on the underpinning that there
17 must be appropriateness, that the
18 establishment must be appropriate for the
19 section portion or locality, I believe is what
20 the statute says, in which the establishment
21 is located.
22 25-446, which governs Voluntary

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1 Agreements and their termination, relates to
2 the renewal process. As part of that renewal
3 process one can request termination of the
4 Voluntary Agreement. Now, in determining --
5 MEMBER GANDHI: Do you have your
6 code book with you?
7 MR. KLINE: I do.
8 MEMBER GANDHI: Okay. Because
9 then I can follow along as well.
10 MR. KLINE: Sure.
11 MEMBER GANDHI: So, you're saying
12 under 25-446 what?
13 MR. KLINE: 25-446(d) is the
14 provision which governs termination of
15 Voluntary Agreements. And it starts out by
16 saying unless a shorter term is agreed upon
17 between the parties, the VA runs for the term.
18 That's (d)(1). (d)(2) then says that the
19 Board may accept an application to amend or
20 terminate by fewer than all the parties in the
21 following circumstances. There are two.
22 One, during their renewal period.

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1 MEMBER GANDHI: Right.
2 MR. KLINE: And two, four years
3 from the date of the Board's decision
4 initially approving the VA.
6 MR. KLINE: Three says that notice
7 must be given. Four says that the Board may
8 approve the request if it makes the following
9 findings based upon sworn evidence. There are
10 three. Two of them apply to amendments. The
11 third one applies to amendments and
12 terminations, which would be (4)(C), which
13 states the amendment or termination will not
14 have an adverse impact on the neighborhood
15 where the establishment is located as
16 determined under 25-313 or 25-314 if
17 applicable.
18 Now, granted, I think the language
19 is; I'll be kind, sloppy, but there is no
20 standard given separate and apart from the
21 underlying appropriateness standard that's
22 contained in the statute. So, if the Board

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1 were to say well, gee, the plain language says
2 that we must make a determination as to
3 whether the termination will have an adverse
4 impact on the neighborhood, there isn't any
5 standard for the Board to do that. The only
6 underlying standard contained in the entire
7 statute or the appropriateness standards which
8 are contained in 25-313 and 25-314 --
9 MEMBER GANDHI: What do you
10 consider the words "if applicable" to mean?
11 "If applicable?"
12 MR. KLINE: 314 would not
13 necessarily be applicable, because 314 applies
14 to locations within footage of schools and so
15 on and so forth. That wouldn't be applicable
16 in this case because this establishment is
17 where it is. And if there's a school, then
18 that issue's already been determined, so that
19 wouldn't be applicable. The provision --
20 MEMBER GANDHI: Do you think --
21 I'm sorry to interrupt.
22 MR. KLINE: That's okay. No

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1 problem.
2 MEMBER GANDHI: As I think of a
3 question, I'm just going to ask you.
4 MR. KLINE: No problem.
5 MEMBER GANDHI: But do you think
6 "if applicable" also can relate to 25-313, the
7 way it's written?
8 MR. KLINE: I'm not sure that I
9 understand your question, and then I'd have to
10 look in terms of --
11 MEMBER GANDHI: Because it says
12 the amendment to termination will not have an
13 adverse impact on the neighborhood where the
14 establishment is located as determined under
15 25-313 or 25-314, if applicable.
16 MR. KLINE: Right.
18 if applicable is only for 25-314 and not to
19 25-313? Does that make sense?
20 MR. KLINE: I think so, but I
21 think what's applicable is 25-313(4), which
22 talks about a renewal, because that's what

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1 we're dealing with here. In reading the
2 statute more carefully, it may be that what
3 should have happened, and it didn't, is that
4 the termination should have been combined with
5 the renewal. I mean, in looking at the
6 language over the last few weeks more
7 carefully, perhaps that's what should have
8 happened, but I'm not sure that it's a
9 distinction that has much of a difference.
10 The point is it is part of the
11 renewal process and we would either be here on
12 a renewal that would be combined with the
13 termination or, as we are today, the request
14 for termination, if that's clear.
15 MEMBER GANDHI: Okay. And do you
16 have any other comments?
17 MR. HIBEY: Well, I have I guess
18 two comments. One, that statute never
19 connects back to Section 311, which is the
20 basis for his Motion to Dismiss. So, 311
21 can't be involved in this matter. We can't be
22 dismissed on 311 when it doesn't apply. 446

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1 never talks about Section 311.
2 But more importantly --
3 MEMBER GANDHI: Mr. Kline, where
4 does 311 stand in your argument to dismiss?
5 MR. KLINE: It's not just 311,
6 it's also --
7 MEMBER GANDHI: 725 and 726 and --
8 MR. KLINE: Correct. I mean, in
9 order to assert a protest under the
10 regulations, one must assert one of the
11 appropriateness grounds. Otherwise, we have
12 no way to determine whether a protest meets
13 the threshold criteria.
14 But in addition to those sections,
15 311 states that, 315 states that, and 25-
16 404(c) with respect to substantial changes
17 says if there is no objection concerning
18 appropriateness, then appropriateness is
19 presumed. This is related to the renewal, so
20 this would actually come under 315, which
21 relates to renewals. And as we recall under
22 313(b)(4), that incorporates 315, which

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1 relates to renewals. And 315 of course deals
2 with the check sheet and history of compliance
3 and so on and so forth.
4 So indeed, the section which says
5 that if there is no objection it's deemed
6 appropriate is incorporated into 313 as it
7 relates to renewals.
9 MR. HIBEY: It's not incorporated.
10 I mean, the Board must make three findings.
11 Now he's saying that the Board can just
12 presume one of those three findings you must
13 make?
14 MEMBER GANDHI: He's saying it's
15 in the regulations as well though.
16 MR. HIBEY: But the statute is
17 clear that the Board has to make three
18 findings, and he's saying you can presume one
19 of those findings. That's not in the statute
20 at all.
21 I want to also go back to a point
22 that was raised earlier when he read through

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1 the statute. The Licensee made the point that
2 under part 4 of 446(d) that Sections A and B
3 are inapplicable to this proceeding, and that
4 is incorrect. The correct reading of the
5 statute is that the Licensee -- the burden's
6 on the Licensee to prove to the Board (A), (B)
7 and (C), all three of those. And I can walk
8 through that further --
9 MEMBER GANDHI: -- request by
10 fewer than all parties --
11 MR. HIBEY: -- but I think we're
12 getting into more than we need to at this
13 point.
14 MEMBER GANDHI: Well, it's not
15 more, because --
16 MR. HIBEY: Did you want me to --
17 MEMBER GANDHI: Yes, because I'll
18 be honest with you, I mean, there's a Motion
19 to Dismiss your protest, so I mean, we may not
20 even be here. So, I don't think it's more.
21 I think that you need to explain yourself so
22 that we all can move forward.

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1 MR. HIBEY: Okay. All right.
2 MEMBER GANDHI: No offense. I
3 mean --
4 MR. HIBEY: Yes.
5 MEMBER GANDHI: -- you know, don't
6 think that this is just a frivolous exercise,
7 because it's not.
8 MR. HIBEY: Okay. But this gets
9 into --
10 MEMBER GANDHI: I mean, I wouldn't
11 have spent that much time on it if it was a
12 frivolous exercise.
13 MR. HIBEY: Yes, this gets into
14 our Motion to Dismiss.
16 MR. HIBEY: And I'm not sure how
17 much you want me to get into that, but I'll go
18 through it right now.
19 Under Section 25-446(d)(4) it
20 says, "The Board may approve a request by
21 fewer than all the parties to amend or
22 terminate a Voluntary Agreement for good cause

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

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1 to read through this and we'll get to it next.
3 CHAIRMAN BRODSKY: So why don't we
4 wait until the next section and then we'll get
5 a chance to -- give us all --
6 MEMBER GANDHI: Okay. Do you want
7 to read it now?
8 CHAIRMAN BRODSKY: Yes.
9 MR. HIBEY: So, we're going to
10 hold off --
11 CHAIRMAN BRODSKY: Hang on. I'm
12 just going to read a few more things and we're
13 going to get to that, because we're going to
14 talk about the Motion to Dismiss the Petition
15 to Terminate the Voluntary Agreement.
16 Any other questions from the
17 Board?
18 MR. HIBEY: Well, I'm sorry. I
19 did have another point on the other motion, on
20 the first one we just discussed.
21 CHAIRMAN BRODSKY: Yes, please.
22 MR. HIBEY: Do you want me to go

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1 back to that?
3 MR. HIBEY: Okay. The fact is we
4 didn't have to object timely under
5 appropriateness, but we did. And that's in
6 the filings already before the Board and
7 submitted to the other side. Back in June the
8 letter that Mr. Mallof referenced, it includes
9 language that we object to termination of the
10 Voluntary Agreement and it --
11 MEMBER GANDHI: Yes, that's pretty
12 clear.
13 MR. HIBEY: And in the June letter
14 it also attaches the previous protest letter
15 from when this all began, and those are the
16 same reasons why we object.
17 MEMBER GANDHI: Where's that
18 protest letter?
19 MR. HIBEY: It was an attachment
20 to a filing.
21 MEMBER GANDHI: I only have four
22 pages in front of me.

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1 MR. HIBEY: There was a lot more
2 than that. There was also an attachment that
3 had PowerPoint slides that laid out additional
4 concerns about appropriateness. I mean, it's
5 been filed.
6 MR. MALLOF: If I may, there were
7 two attachments to that letter submitted. One
8 was the PowerPoint and the other was the
9 original protest letter.
10 MEMBER GANDHI: Okay. You're
11 talking about the June 28th letter?
12 MR. HIBEY: Yes. There was a June
13 28th and there was a June 7th.
14 MEMBER GANDHI: When was the
15 attachments? Where are the attachments, June
16 28th?
17 MR. HIBEY: I'm looking at a June
18 7th one that says the protest letter is
19 attached.
20 MEMBER GANDHI: Okay. The
21 attachments you're talking about, the protest
22 letter as well as all the PowerPoint slides

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1 that you were talking about, is that on the
2 June 7th letter or the June 28th letter?
3 MR. HIBEY: I know June 7th has
4 the protest letter. June 7th.
5 MEMBER GANDHI: So you're saying
6 June 28th?
7 MR. HIBEY: The letter from June
8 7th references a protest letter attached.
9 MR. MALLOF: And the letter from
10 June 7th is a request to re-placard and to
11 clarify what it is that needs to be modified.
12 MEMBER GANDHI: All right. Do you
13 have a copy of that?
14 MR. HIBEY: I have a copy of the
15 letter, not all the attachments with me. Do
16 you want the letter?
17 MEMBER GANDHI: Just so we know
18 what we're talking about.
19 MR. HIBEY: I think it is --
20 MR. KLINE: Just for the record, I
21 believe we're talking about a June 7th motion
22 to the Board to request Hank's Oyster Bar to

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1 clarify its petition and to refile, and for
2 ABRA to then re-placard Hank's Request to
3 Terminate Its In-Force and Contractual
4 Voluntary Agreement with community residents
5 dated May 4th, 2005. It was a motion that was
6 filed and the Board subsequently ruled and
7 denied the motion. I believe that's what
8 we're talking about.
9 MEMBER GANDHI: You're talking
10 about the motion?
11 MR. MALLOF: And I believe the
12 Board's denial doesn't mention anything about
13 appropriateness anywhere.
14 MR. HIBEY: It doesn't matter.
15 What I'm saying is the appropriateness factors
16 were raised a long time ago in the motion, in
17 the letter. We attached the protest letter.
19 with --
20 MR. HIBEY: The entire basis of
21 our --
22 MEMBER GANDHI: Are you saying

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1 along with your motion on June 7th that that
2 was also a part of the record and a part of
3 your opposition to the termination of the
4 Voluntary Agreement?
5 MR. HIBEY: Yes.
6 MEMBER GANDHI: And what do you
7 think about that, Mr. Kline?
8 MR. KLINE: The letter is
9 captioned as a motion. It was treated as a
10 motion. We treated it as a motion, since
11 that's what it was called. The Board treated
12 it as a motion and the motion was to require
13 the Applicant to refile or to re-placard. The
14 Board dealt with that motion, issued an order
15 denying that motion. So we certainly did not
16 take that at that time as a protest of the
17 request to terminate the Voluntary Agreement.
18 The protest letter is the one dated June 28th,
19 2010. It has no attachments, not my copy.
20 There are none referenced in the letter. And
21 I find nothing; and I've scrubbed it several
22 times, in this letter which says that

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1 appropriateness is an issue. I mean, they say
2 everything's untrue and that the agreement
3 remains in force, and this is a contract and
4 a whole lot of things regarding issues that
5 are not related to the statutory scheme which
6 sets forth specific issues of appropriateness.
7 There is nothing in the letter.
8 MEMBER GANDHI: Well, the June
9 28th letter says via email PDF with
10 attachment. So, where's the attachment? I'm
11 just curious. I mean, it's sort of important
12 that we -- does anyone have the attachment?
13 MR. MALLOF: The attachment, sir,
14 if I may, i sin Mr. Moosally's inbox, Ms.
15 Jenkins' inbox, Mr. Brodsky's inbox. It is
16 there.
18 MR. KLINE: It was not served with
19 the copy of the letter that we received.
20 MR. MALLOF: Yes, and I don't
21 believe -- I'm not sure, Mr. Kline, on the
22 28th or on the 7th if we copied you. I

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1 believe the Board copied you.
2 CHAIRMAN BRODSKY: All right.
3 We're going to go check for that and hopefully
4 get a copy of it brought down to the Board.
5 We're going to take up our second
6 motion, the Protestant's Motion to Dismiss the
7 Petition to Terminate the Voluntary Agreement.
8 This second preliminary matter is
9 the Protestant's Motion to Dismiss Licensee's
10 Petition to Terminate Its Voluntary Agreement.
11 The Protestant's Motion to Dismiss argues that
12 the Board should dismiss the petition to
13 terminate the Voluntary Agreement because the
14 Licensee did not attach a sworn affidavit to
15 fulfill the good faith attempt criteria of
16 D.C. Code Section 25-446(d)(4)(A)(2). The
17 Licensee contradicts this argument by pointing
18 out the request for Voluntary Agreement
19 termination does not require that the Licensee
20 make efforts to reach agreement because
21 termination is not mentioned in either (4)(A)
22 or (4)(B).

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1 Does either party have oral
2 remarks to make before the Board in addition
3 to supplement its written filings?
4 MR. HIBEY: Yes. I wanted to go
5 back to the statute first, I guess, which is
6 where I was getting into before we started to
7 get into this motion.
8 Section 446(d)(4) states that,
9 "The Board may approve a request of fewer than
10 all the parties to amend or terminate a
11 Voluntary Agreement for good cause shown if it
12 makes each of the following findings based
13 upon sworn evidence." Okay. Then the statute
14 continues with an (A), a (B) and a (C). All
15 three of those must be found when the Board is
16 asked to terminate a Voluntary Agreement.
17 They don't just some of them apply to
18 amendment and some of them apply to
19 termination. That is not how the statute's
20 written. And you know this because in Section
21 (4) it requires the Board to make each of the
22 following findings. And then as you continue

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1 on, you can see under (a)(2), if non-Applicant
2 parties are located, the Applicant has made a
3 good faith attempt to negotiate a mutually-
4 acceptable amendment to the Voluntary
5 Agreement. That's something that the Board
6 must find.
7 Now, the Licensee is saying, well,
8 we just want a termination. We don't want an
9 amendment, so this doesn't apply to us.
10 That's wrong. The Applicant still has to meet
11 (a)(2). The Applicant has to make a good
12 faith attempt to negotiate a mutually-
13 acceptable amendment.
14 CHAIRMAN BRODSKY: How do you
15 overlook the word "or?"
16 MR. HIBEY: The word "or"
17 defines --
18 CHAIRMAN BRODSKY: (a)(1) says the
19 Applicant seeking the amendment has made a
20 diligent effort to locate all parties, or --
21 MR. HIBEY: Or. And then it says
22 "if."

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1 CHAIRMAN BRODSKY: Right.
2 MR. HIBEY: Because the "if" is a
3 yes, you disregard the (1). It's not either
4 or.
5 MEMBER GANDHI: It's a yes.
6 MR. HIBEY: It's if they're then
7 found, you must do (2).
8 CHAIRMAN BRODSKY: "When Applicant
9 parties are located." Well, I'm not so sure
10 what you're getting at here, but okay.
11 MR. HIBEY: Well, I'm getting at
12 that the Applicant must make a good faith
13 attempt to negotiate a mutually-acceptable
14 amendment and the Applicant has never done
15 that.
16 CHAIRMAN BRODSKY: You're alleging
17 the Applicant has never done that?
18 MR. HIBEY: Well, yes.
19 CHAIRMAN BRODSKY: Okay.
20 MR. HIBEY: I'm alleging that and
21 it's also true.

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1 MR. HIBEY: The only way to
2 fulfill (a)(2) is in Section 5 beneath. And
3 it says to fulfill the good faith attempt
4 criteria of paragraph (4)(A)(2), this is what
5 you have to do. And it requires a sworn
6 affidavit at the time of filing the
7 application.
8 There's two issues here. One, a
9 sworn affidavit was never filed, so you can
10 never find (a)(2) met in this case. Number
11 two, a sworn affidavit could not be filed,
12 because as Mr. Kline has indicated to us and
13 again in his opposition papers, he never
14 sought an amendment. He never made a good
15 faith attempt to amend the Voluntary
16 Agreement, because as he says, he just wants
17 termination. But that's not what the statute
18 requires. You must first make a good faith
19 attempt to amend. I don't care if all you
20 want is termination. Every restaurant and bar
21 wants termination. You must first make the
22 good faith attempt. And the only way to show

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1 it is through a sworn affidavit, which doesn't
2 exist. But even if it did exist, it -- well,
3 it couldn't exist because he has said time and
4 again we never made an attempt at good faith
5 negotiations to amend because we just want
6 termination. That's the basis of our motion.
7 CHAIRMAN BRODSKY: Well, so my
8 question is, I'm looking at a letter sent to
9 us by I believe it was Mr. Kline. Yes, signed
10 by Mr. Kline. It's the Petition to Amend or
11 Terminate a Voluntary Agreement. And I'm
12 looking at No. 3, point No. 3, point No. 4,
13 point No. 5, point No. 6, which all talk about
14 reaching out, trying to contact people, Mr.
15 Mallof, Mr. Diener. There was some back and
16 forth. There's dates, there's times. So, I'm
17 not so sure I understand when you say it's a
18 fact that nobody tried to communicate about
19 this. Are you saying that he perjured
20 himself, that he filed a false statement?
21 MR. HIBEY: What I'm saying is he
22 never made a good faith attempt to negotiate

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1 an amendment.
2 CHAIRMAN BRODSKY: Well, he
3 reached out, allegedly right? Okay. I'm just
4 reading off here. February, March, a couple
5 times in February, March, again in -- I mean,
6 there's a couple of times it seems like he's
7 reaching out. And from what I read here, it
8 says, "Mr. Mallof indicated he did not believe
9 a meeting would be productive as he did not
10 believe it was time to revisit the Voluntary
11 Agreement." How does that translate into good
12 faith?
13 MR. HIBEY: My understanding, that
14 the communication was we need to talk about
15 termination. That was it. That's not a good
16 faith attempt to negotiate an amendment, that
17 Mr. --
18 CHAIRMAN BRODSKY: Well, it is if
19 you don't believe you should have one.
20 MR. HIBEY: It doesn't matter.
21 The statute requires a good faith attempt to
22 negotiate an amendment.

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1 CHAIRMAN BRODSKY: So did you guys
2 just refuse to meet with the Applicant?
3 MR. HIBEY: No.
4 CHAIRMAN BRODSKY: Then how come
5 you never met?
6 MR. HIBEY: Because we asked for
7 terms why we were meeting and there was no
8 response. That's my understanding.
9 CHAIRMAN BRODSKY: So they reached
10 out. So, you don't disagree that they reached
11 out and tried to contact you?
12 MR. HIBEY: What I disagree with
13 is the characterization of the reaching out.
14 Reaching how to be --
15 CHAIRMAN BRODSKY: Well, that
16 doesn't necessarily mean that they agree with
17 your position.
18 MR. HIBEY: No.
19 CHAIRMAN BRODSKY: It just means
20 they reached out in good faith.
21 MR. HIBEY: In good faith --

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1 MR. HIBEY: -- to reach a
2 mutually-agreeable amendment. The only
3 contact was we want to terminate.
4 CHAIRMAN BRODSKY: Well, what's
5 mutually agreeable to each of you is
6 different, right? That's the whole idea
7 behind having different sides of a debate.
8 MR. HIBEY: Right.
9 CHAIRMAN BRODSKY: The fact that
10 they reached out to you, they fulfilled their
11 good faith obligation to reach out, not that
12 they have to agree with you.
13 MR. HIBEY: No, no. It's not just
14 to reach out.
15 CHAIRMAN BRODSKY: I'm just
16 disagreeing with your characterization of the
17 word "good faith." That's all.
18 MR. HIBEY: But it's a -- I'm
19 sorry, the statute says good faith attempt to
20 negotiate a mutually-acceptable amendment.
21 It's not just to talk about it. It's not just
22 to talk. The point of it is we want

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1 amendments, not terminations.
2 CHAIRMAN BRODSKY: Well, I guess
3 the other side wants something different.
4 MR. HIBEY: Right.
5 CHAIRMAN BRODSKY: There you go.
6 MR. HIBEY: But the statute's
7 written as is.
8 CHAIRMAN BRODSKY: I understand.
9 Okay. Thank you.
10 MEMBER JONES: Mr. Chair?
11 CHAIRMAN BRODSKY: Yes, Mr. Jones?
12 MEMBER JONES: Just may I ask a
13 clarification question?
14 CHAIRMAN BRODSKY: Yes, sir.
15 MEMBER JONES: Thank you. Mr.
16 Kline?
17 MR. KLINE: Yes.
18 MEMBER JONES: Did you participate
19 in a mediation hearing with Ms. Fletcher
20 regarding this item on August 17th at
21 approximately 1:00 p.m.?
22 MR. KLINE: Mediation in

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1 connection with the termination request?
2 MEMBER JONES: Yes.
3 MR. KLINE: Yes, we did.
4 MEMBER JONES: You did?
5 MR. KLINE: Yes.
6 MEMBER JONES: Okay. Do you
7 happen to remember what parties were there
8 assembled? If you don't, that's fine.
9 MR. KLINE: I don't off hand.
10 MEMBER JONES: I think we have the
11 record. Okay.
12 In that meeting what was the
13 intent, as you saw it? As you were
14 representing this Licensee, what did you see
15 as the intent of that mediation meeting?
16 MR. KLINE: To resolve the issues
17 related to the request for termination of the
18 Voluntary Agreement.
19 MEMBER JONES: Okay. Thank you.
20 Thank you, Mr. Chairman.
21 CHAIRMAN BRODSKY: You're welcome,
22 sir.

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1 Any other questions? Mr. Gandhi?
2 MEMBER GANDHI: So, are you
3 arguing that it just wasn't good faith?
4 MR. HIBEY: No, I'm arguing more
5 than that.
6 MEMBER GANDHI: You're arguing
7 that it was a termination, not an amendment,
8 that all they wanted is termination and not an
9 amendment?
10 MR. HIBEY: Yes, but --
11 MEMBER GANDHI: And the statute
12 talks about amending, not termination,
13 correct?
14 MR. HIBEY: Right, the statute
15 says you need to make a good faith attempt to
16 negotiate a mutually-acceptable amendment.
17 But I'd also like to back up a
18 step, too. And the only way the Board can
19 find that that has been done is defined in
20 Section 5, and it's by the sworn affidavit,
21 which doesn't exist.
22 MEMBER GANDHI: Do you think one

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1 could argue that the petition that the
2 Chairman just read off of could be that sworn
3 affidavit?
4 MR. HIBEY: No, the statute's
5 clear. If it was permissible to just file a
6 petition without a sworn affidavit, it
7 wouldn't go to the great length of adding
8 Section 5. The statute's only got a few
9 provisions.
10 MEMBER GANDHI: Mr. Kline, I'll
11 let you respond, if you'd like.
12 MR. KLINE: Yes, two points. One
13 is I believe it's in the record and in fact
14 it's attached to our petition. There's an
15 email from me to Mr. Mallof dated February
16 24th, 2010, 6:18 p.m. "Dave, when we spoke
17 today you indicated you did not believe it is
18 time to revisit the Voluntary Agreement for
19 Hank's Oyster Bar. Accordingly, although you
20 indicated you do not speak for the others, you
21 see no point in meeting to discuss the matter.
22 You indicated that you would however speak

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1 with the other signatories to the VA to see if
2 they feel differently." The letter goes on
3 and concludes with, "I am keeping March 10 at
4 10:00 a.m. available in case you are willing
5 to meet. Please let me know whether you will
6 be coming."
7 So, I mean, in terms of discussion
8 of a termination, discussion of an amendment,
9 the issue was more general than that. Let's
10 get together. Let's talk about the Voluntary
11 Agreement. This is the first time in three
12 pleadings which have been filed by the
13 Protestants that it's alleged that the
14 Licensee was unwilling to meet, and frankly,
15 it's just simply not true.
16 More importantly than that, let's
17 look at the statute. Mr. Hibey's argument
18 ignores two words in the statute. We just
19 presume we construe statutes that words are in
20 the statute for a reason. And if one looks at
21 (d)(4)(A), (B) and (C), it says the Board must
22 find, and Mr. Hibey said (A), (B) and (C).

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1 (A) says the Applicant seeking the amendment
2 has made a diligent effort. (B) says the need
3 for an amendment is caused by a change in
4 circumstances or is due to a change in the
5 neighborhood. (C) says the amendment or
6 termination. For the first time we talk about
7 termination.
8 Now, if there's no distinction,
9 why are the words "or termination" in there?
10 If amendments were treated exactly the same as
11 terminations, then in (C) the word
12 "termination" would not appear. It would be
13 consistent and it would say the party seeking
14 the amendment has to do (A), the party seeking
15 the amendment has to do (B), the party seeking
16 the amendment has to do (C). Instead what we
17 have is the party seeking amendment has to do
18 (A), the party seeking amendment has to do
19 (B), the party seeking amendment or
20 termination has to do (C).
21 Now, if Mr. Hibey's argument is
22 persuasive, then the Board has to conclude

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1 that those words "or termination" were not put
2 in the statute for any particular reason, and
3 that just simply defies the rules of statutory
4 construction. Words are in a statute because
5 they have meaning.
6 Now, granted the introductory
7 section says you have to prove each of the
8 following, but then when you get to the
9 details in terms of what must be proven,
10 termination only requires the third element.
11 The details have to control over the general.
12 That's another rule of statutory construction.
13 So, it's our position that when
14 you're talking about a termination, there's
15 only one thing that has to be shown and that's
16 appropriateness. We come back to
17 appropriateness, which this Board deals with
18 week in and week out with respect to new
19 applications, renewals, substantial changes,
20 and we all know what the standards and the
21 criteria are.
22 CHAIRMAN BRODSKY: Mr. Hibey?

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1 MR. HIBEY: Yes, his argument is
2 premised on reading all the words and giving
3 meaning to all the words. You must give
4 meaning to the words "or terminate" in the
5 clause above it in Section (4), which defines
6 everything that follows. And you must give
7 meaning to the word "each." The way this is
8 written is if you want termination, you must
9 first do (A) and (B). You must first show
10 that you've reached out and made a good faith
11 attempt to amend, because an amendment is less
12 than a termination. Then you must next show
13 that there's a need for an amendment. You
14 have to at least have a need for an amendment
15 to get to the point of termination. That's
16 what (B)'s about. And then (C) ties them all
17 together. For both of them, you need --
18 because you're going down it step by step.
19 You need both to terminate.
20 Now, if you accept the Licensee's
21 argument, his argument is that you can
22 terminate a Voluntary Agreement, an agreement

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1 that was entered in this case just a little
2 over five years ago just by showing
3 appropriateness. You don't even need to show
4 a need to terminate. You just need to show
5 appropriateness.
6 CHAIRMAN BRODSKY: Isn't one of
7 the reasons that you can terminate a Voluntary
8 Agreement time? So, if more than four years
9 have passed since the date of a Board's
10 decision approving a Voluntary Agreement, if
11 more than four years passes isn't that a
12 reason to seek termination?
13 MR. HIBEY: That's when you can
14 seek termination. It's not a reason the Board
15 can find to approve the petition.
16 CHAIRMAN BRODSKY: No, I'm saying
17 but that is one of the criteria, right? Okay.
18 MR. HIBEY: That is the criteria
19 for the Board to accept an application. But
20 to approve the application there are three
21 findings the Board must make. It's not just
22 one. You can't just skip over the first two

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1 because he wants to go further and not amend
2 it. He wants to terminate the whole thing.
3 So now we have a much lower standard to
4 terminate than to amend? The statutes
5 couldn't be more clear.
6 MR. KLINE: That we disagree on.
7 PARTICIPANT: We all would.
8 MEMBER ALBERTI: Yes, and this is
9 slightly off-track, but I'm hanging on the
10 words of the statute as Mr. Kline instructed,
11 because it says the Board may approve a
12 request by fewer than all parties to amend or
13 terminate a Voluntary Agreement for good cause
14 shown if it makes each of the following
15 findings based upon sworn evidence.
16 And then I go down to -- this is
17 item 4. Then I go down to (4)(C) and it says
18 the amendment or termination will not have an
19 adverse impact on the neighborhood where the
20 establishment is located.
21 I have the Petition to Terminate.
22 Can each of the parties speak to me where that

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1 represents sworn evidence? I mean, my
2 question is is not whether we can accept the
3 application, but about whether we can
4 terminate without that sworn evidence, because
5 the statute is very clear when it says we need
6 sworn evidence. And so I'd like to hear from
7 both parties about whether or not they believe
8 the Board has sworn evidence on which to base
9 a decision of termination. Mr. Kline?
10 MR. KLINE: Sure. We certainly
11 are prepared to put on sworn evidence today
12 concerning termination, concerning
13 appropriateness, concerning the other two
14 prongs if the Board feels that it's applicable
15 to a termination.
16 MEMBER ALBERTI: My question is do
17 we need to?
18 MR. KLINE: Our position is --
19 MEMBER ALBERTI: Is the Board
20 obligated to receive that sworn evidence by a
21 statute?
22 MR. KLINE: Two points. One is

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1 our position is under (A) and (B) sworn
2 evidence with respect to those issues only
3 relates to an amendment, not a termination.
4 MEMBER ALBERTI: I understand.
5 MR. KLINE: And three, with
6 respect to appropriateness, yes, sworn
7 evidence is necessary unless appropriateness
8 is presumed, because under 25-315 no timely
9 protest articulating a protest ground has been
10 filed.
11 MEMBER BROOKS: Okay. If you draw
12 that connection. Okay.
13 MR. KLINE: And just -- go ahead.
14 That's fine. Thank you.
15 MR. HIBEY: This sort of goes back
16 to another issue, but there's no sworn
17 evidence right now in front of the Board. So,
18 the Board can't make these findings until
19 sworn evidence is put on. But what the Board
20 can do is realize that sworn evidence can
21 never come in on (4)(a) in this proceeding, so
22 it must be dismissed. Thank you.

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1 MR. KLINE: Mr. Chair, if I may.
2 I remembered the point I was going to make.
3 The reason there's a difference
4 between termination and amendment is the
5 obvious one that I think has really been
6 argued by the Protestants, which is there's no
7 point in talking about an amendment if the
8 party seeks termination. Why should the
9 parties be forced to meet and say, well, gee,
10 we want to terminate. Well, gee, we don't
11 want you to terminate. Have a nice day.
12 Great meeting. That's why there's a
13 difference and a distinction in the statute
14 between the grounds for termination and the
15 grounds for amendment. Ultimately ABC
16 Licensee's conduct is governed by this Board.
17 Now, in the past few years I think
18 we've gotten away from that a bit with the
19 proliferation of Voluntary Agreements, but
20 ultimately it's this Board that determines
21 whether an establishment is appropriate. A
22 Voluntary Agreement is simply a mechanism for

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1 settling a dispute. It's no more than that.
2 It's become more than that unfortunately.
3 But given that, it seems perfectly
4 logical that, yes, the standard would be
5 different if you want to terminate because
6 you're throwing it back to the Board and
7 saying, you know, we're appropriate without a
8 Voluntary Agreement, we're appropriate as is.
9 Board decide. If parties have problems with
10 that and they can file a protest and
11 articulate one or more of the appropriateness
12 grounds for contesting the appropriateness of
13 the establishment.
14 MEMBER ALBERTI: Mr. Chair?
15 CHAIRMAN BRODSKY: Mr. Alberti?
16 MEMBER ALBERTI: And both of you
17 can respond to this, but when I look at the
18 word "amendment," in some way one could assume
19 under the definition of amendment you have a
20 termination that's subsumed. I mean, isn't
21 termination the ultimate amendment? Negation
22 of the contract. Isn't that the final

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1 amendment?
2 MR. KLINE: I would agree with you
3 if (C) did not make a distinction that is not
4 found in (A) and (B), because all of a sudden,
5 if that's true -- and I agree that would be
6 appropriate if "or termination" was not there.
7 But when those words appear, we have to look
8 at those words and say, well, gee, why are
9 they there? And the only conclusion I can
10 come to is that the reason that they're there
11 is because there's a difference between an
12 amendment or a termination.
13 MR. HIBEY: And there is a
14 difference, but that doesn't mean (A) and (B)
15 don't apply. To get to the stage of
16 termination you have to first show that
17 there's a need to at least amendment. You
18 have to first show that you've at least a good
19 faith attempt to amend. The statute is
20 written that way. The Board must make each of
21 the following findings. It applies to
22 amendments and terminations. To now say the

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1 Board must only make one finding for a
2 termination, when that is a step beyond an
3 amendment, doesn't make any sense.
4 To terminate under Mr. Kline's
5 reading of this statute, all you have to do is
6 come in and say, well, if we terminate, we're
7 not going to have an adverse impact. You
8 don't even have to show that there's a need to
9 terminate a valid Voluntary Agreement that the
10 Board has entered as an order. So, they don't
11 need to show any need to do this.
12 CHAIRMAN BRODSKY: To terminate,
13 you're saying?
14 MR. HIBEY: Yes.
15 MEMBER ALBERTI: Mr. Hibey, there
16 was an admission that there was a mediation
17 taking place, right? There was a mediation
18 between the two parties that place?
19 MR. HIBEY: Yes.
20 MEMBER ALBERTI: I mean, isn't it
21 reasonable to construe that that was a time --
22 whether one party was using the word

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1 "termination" or not, isn't it reasonable to
2 construe that that was the time where you were
3 to be talking about amending short of
4 termination?
5 MR. HIBEY: Yes.
6 MEMBER ALBERTI: Well, then a good
7 faith was made.
8 MR. HIBEY: No. No, you must make
9 a good faith effort to amend, and no effort
10 was made to amend. All he came in and said is
11 we're terminating. That's it. And that
12 doesn't meet the statute.
13 MEMBER ALBERTI: Okay.
14 MR. HIBEY: I know you might think
15 that it's silly that he has to do that, but
16 that's what the statute requires and the Board
17 must find that that has been done.
18 MR. KLINE: It is silly, but we
19 did it anyway. In fact, letters of record at
20 this point demonstrate that. The letters are
21 there. The Board has the letters. They've
22 never been disputed in the three motions. So

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1 if we're hearing that it didn't happen, that's
2 certainly news to us today, because I mean, we
3 have the emails, we have the letters that the
4 contacts were made and that the Protestants
5 refused to meet.
6 MS. DIENER: Mr. Chairman?
7 CHAIRMAN BRODSKY: Yes, Ms.
8 Diener?
9 MS. DIENER: If I just may
10 interject. I made several attempts on behalf
11 of DCCA to speak to Ms. Leeds. I see her
12 around the neighborhood. I live just about a
13 half-a-black away from her establishment. And
14 she did say she would get in touch with me.
15 She said she wanted to meet with her lawyer.
16 And I said, well, I don't know why that's
17 necessary, but of course. But those never
18 came to fruition.
19 And we did participate, DCCA did
20 participate then in the actual mediations.
21 And I must say I asked on several occasions
22 how can we work with you to amend? Because

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1 that is what the neighborhood would like. We
2 like these Voluntary Agreements. We think
3 they're helpful. I understand you don't want
4 it, but we would like to be able to work with
5 you to try to reach an amendment, and we're
6 told flat out no, she did not want a VA. She
7 did not need a VA and she doesn't deserve one.
8 And that's -- certainly she's entitled to her
9 opinion, but it made it impossible to have a
10 discussion about amendment, in our view.
11 CHAIRMAN BRODSKY: Ms. Diener, did
12 it ever occur to you that somebody just
13 doesn't want a Voluntary Agreement on their
14 business?
15 MS. DIENER: Oh, yes.
16 CHAIRMAN BRODSKY: And that
17 they're not even willing to discuss it with
18 you, because they just don't want one, even if
19 it only had in it that you got to pick up your
20 trash every Monday, or you got to keep your
21 shrubs trimmed? Some people just don't want
22 them.

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1 MS. DIENER: I understand that.
2 CHAIRMAN BRODSKY: And the in
3 original creation of a Voluntary Agreement,
4 they're really prescriptive in nature, right?
5 A Licensee did something bad, operated in some
6 bad manner and so a Voluntary Agreement was
7 brought together to try to address a problem.
8 But they were prescriptive, right? They
9 weren't as of right. It's not like when you
10 become a Licensee that you got to go get your
11 Voluntary Agreement. They're not an as of
12 right thing.
13 So, what I didn't understand, Mr.
14 Hibey, that you said was you said something
15 about the Licensee doesn't need to show a need
16 to terminate, they can just file to terminate?
17 MR. HIBEY: Under his reading,
18 yes.
19 CHAIRMAN BRODSKY: Well, yes,
20 right? I mean, I don't want a Voluntary
21 Agreement, so I'm going to file to terminate
22 it. I'm not in a good faith negotiation with

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1 you guys to try to make a thing I don't like
2 less not likeable. I just don't want one on
3 my business. That's their perspective. And
4 they're perfectly valid right. I mean, that's
5 not --
6 MR. HIBEY: But that's not a
7 ground to terminate a Voluntary Agreement.
8 CHAIRMAN BRODSKY: Well, if it's
9 after four years and you do some other stuff,
10 I guess it is.
11 MR. HIBEY: Right, and the other
12 stuff is what we're talking about.
13 CHAIRMAN BRODSKY: Well, we're
14 getting to that, right?
15 MR. HIBEY: But they haven't done
16 that.
17 CHAIRMAN BRODSKY: We're getting
18 to that.
19 Mr. Mallof, you have something?
20 MR. MALLOF: Yes, sir. Thank you
21 very much.

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1 MR. MALLOF: Just for the record
2 we have a letter signed by -- and it's in my
3 language, signed by me, Lex and Robin, who
4 attended the mediation on the 18th. Citizens
5 are afraid of this process. And we don't want
6 to be viewed and we dont' want to feel for the
7 good of our neighborhoods that we are not
8 willing to talk and negotiate. Robin asked
9 twice in that meeting. Ms. Fletcher was there
10 as a witness and it's not a confidential --
11 MR. KLINE: Excuse me.
12 MR. MALLOF: -- it's not a
13 confidential aspect of the mediation.
14 MR. KLINE: If he's going to get
15 into what happened in the mediation, I will
16 object.
17 MR. MALLOF: It's the agenda item.
18 CHAIRMAN BRODSKY: I agree with
19 you.
20 MR. MALLOF: I'm sorry.
21 CHAIRMAN BRODSKY: Mr. Mallof,
22 please don't talk about anything that happened

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1 in the mediation.
2 MR. MALLOF: Well, if I may, sir,
3 Ms. Fletcher was setting the agenda, not the
4 discussions for the meeting.
6 MR. MALLOF: She was setting the
7 agenda. And in setting the agenda for the
8 meeting it was very clear that the agenda did
9 not include amendment. Robin asked a couple
10 of times and that's all I'm trying to say. We
11 did not actually negotiate and I'm not trying
12 to disclose anything that happened in detail.
13 In addition, before that at the
14 roll call that was held on August 9th I made
15 it very clear that I thought maybe the
16 mediation might be short because it was a
17 binary issue of terminate or not. And Mr.
18 Kline did not disagree on the record.
19 So, just from the citizens' point
20 of view, when we see the placards go up and
21 when we see the requests for objection, the
22 antenna go up and then we pay a certain level

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

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1 neighborhood, when legal counsel writes, he
2 should say I'm writing because the time is
3 coming up and you need to start paying
4 attention. We did not realize that we were
5 being summoned into anything. And when we did
6 chat among ourselves, we felt they're not
7 being clear on what they might want to amend,
8 so we really don't see a reason at this time
9 to get together.
10 CHAIRMAN BRODSKY: So, it might
11 come as no surprise, Mr. Mallof, but Mr.
12 Kline's law firm doesn't represent you guys.
13 MR. MALLOF: I understand.
14 CHAIRMAN BRODSKY: And there's no
15 requirement for him to --
16 MR. MALLOF: No, no, I understand.
17 CHAIRMAN BRODSKY: -- write kindly
18 or make sure you guys understand. I mean, you
19 guys have the --
20 MR. MALLOF: I think --
21 CHAIRMAN BRODSKY: Mr. Mallof, if
22 you'd like to let me finish, I'd appreciate

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1 that. Thank you. I gave you all the time you
2 wanted, right? Okay.
3 You know, you talk about the fear
4 of a community group. Can you imagine what
5 the fear would be like, Mr. Mallof, if you put
6 $1 million of your own money on the line to
7 try to open up an ABC licensed establishment
8 in the District of Columbia and you had to
9 face gauntlet of an ANC board who just doesn't
10 really want you and you got your money hanging
11 out there and maybe your family's lives on the
12 line and the people that work for you's lives
13 on the line? So, I think you should be very
14 careful about using the word "fear," because
15 I think it really exists more on the opposite
16 side of the table.
17 MR. MALLOF: Perhaps.
18 CHAIRMAN BRODSKY: And then the
19 other thing is is that as a community group
20 and as the ANC, when you have the power to
21 protest an hold up somebody's business, you
22 have a responsibility to know what's going on

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1 around you. Right? You can't -- you being
2 community groups, ANCs and community groups,
3 you can't have it both ways. Right? So, if
4 you're going to be in the process, you have a
5 responsibility to know the process.
6 MR. MALLOF: I agree.
7 CHAIRMAN BRODSKY: And not rely on
8 somebody else's legal counsel to say, hey,
9 heads up, you got this whole thing. That's
10 not their job, you know what I'm saying?
12 CHAIRMAN BRODSKY: Yes, Ms.
13 Diener?
14 MS. DIENER: Mr. Chairman, as a
15 former business owner myself, there's
16 something called market research. And before
17 you put your million dollars on the line, you
18 acquaint yourself with the circumstances. And
19 this is a neighborhood that is under a
20 moratorium on liquor licenses and is
21 furthermore a historic district. There are a
22 lot of complications to deal with.

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1 I myself was delayed in opening my
2 business many years ago when we in good faith
3 went ahead and put all the books and bookcases
4 out on the floor. And the government came in
5 and said you can't do this without having
6 submitted a plan, and we were kept from
7 opening for 30 days. I understand that. It's
8 very difficult to deal with all the rules and
9 regulations. But; and I was wrong according
10 to it, this exists for the neighborhood to
11 have the VA as part of what you can expect to
12 go through if you're opening an alcohol-
13 serving establishment in Dupont Circle.
14 CHAIRMAN BRODSKY: Ms. Diener, we
15 may disagree on this, and I have a feeling
16 that I probably disagree with probably
17 everybody except this table right here on this
18 point.
19 MS. DIENER: Oh, no.
20 CHAIRMAN BRODSKY: But the fact of
21 the matter is is that from what I understand,
22 right, I'm a 20-plus year guy in the District

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1 of Columbia. Right? I think I'm on my 23rd
2 year now. Right? So, as I remember, right,
3 VAs were used after a Licensee did something
4 wrong. Right? So, back in the day district
5 agencies maybe weren't doing as good as they
6 could, or maybe the ABRA Board wasn't doing as
7 good as they could; and believe me, I know,
8 because I was in half the bars that probably
9 got in trouble, running around back then when
10 I was in college, but the VA was something
11 that happened after the fact. Right? So, a
12 Licensee, generally speaking, they did
13 something wrong. I mean, we could do the
14 research. Right? We could pull the first VA,
15 probably 20-some-odd years ago, and find out
16 how it happened. But it was prescriptive.
17 Right? It happened after the Licensee was
18 established, after they were open for business
19 and they'd done done something wrong. So the
20 community got together and they had a
21 Voluntary Agreement to try to address the
22 problem.

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1 But now what we're seeing on the
2 Board is is that that's not the case, is that
3 Voluntary Agreements are being used by the
4 community groups in the negotiation process
5 before you even get open. So, we have things
6 as egregious as shutting down somebody's
7 operating hours under the law, less than
8 they're allowed to operate under the law,
9 before they can even open up their doors.
10 They haven't even opened business yet and
11 they're being forced to limit the hours
12 they're open because the Voluntary Agreement;
13 which the word "voluntary" is probably the
14 most misused word in the dictionary in that
15 sentence, doesn't allow them. But that's not
16 the way the VAs were supposed to work.
17 They're not a prescriptive tool for managing
18 the establishments. They were supposed to be
19 a tool that was used after an incident
20 happened.
21 So, the whole VA process, I mean,
22 I'm asking the agency now to chart the growth

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1 in VAs. It's unbelievable. We have 1,200 of
2 them. So, we just fundamentally disagree on
3 this point. This Licensee has an absolute
4 right under the law to terminate this
5 Voluntary Agreement. Right? They have a
6 right to do that. And we just have a
7 fundamental disagreement about what that tool
8 is used for, I think, and that's going to be
9 part of the challenge.
10 Yes, Mr. Gandhi?
11 MEMBER GANDHI: Thank you. And I
12 just want to get back to business now, because
13 I did get the attachment that was with your
14 letter on June 28th. And I want to make sure
15 counsel has the attachment.
16 MR. KLINE: Okay.
17 MEMBER GANDHI: Okay. And because
18 what I want to do is in your opening statement
19 you had mentioned that you all didn't have a
20 chance to prepare because you didn't know why
21 they were protesting your termination of the
22 Voluntary Agreement, correct?

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1 MR. KLINE: Correct.
3 MR. KLINE: And it was not
4 provided in the copy of the protest letter
5 that was requested from that.
7 MR. KLINE: And we haven't seen
8 it.
9 MEMBER GANDHI: So now we're
10 getting somewhere, you know what I mean,
11 because I do have many documents here and I'd
12 like to talk about them, because I really
13 think this is going to be, at least for me, a
14 deciding point on the motion that they filed,
15 at least as it relates to Mr. Mallof, not as
16 it relates to the Dupont Circle Citizens
17 Association.
18 But on June 28th I see a letter.
19 Do you have a copy of all this, the June 28th
20 letter to Mr. Charles Brodsky, Mr. Fred
21 Moosally and it's signed David Mallof, Alexis
22 Rieffel and three other people? You all have

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1 that?
2 PARTICIPANT: Yes, sir.
3 MEMBER GANDHI: Four-page letter?
4 You have that, counsel?
5 MR. KLINE: I have the letter.
6 MEMBER GANDHI: You have the
7 letter? Okay.
9 MEMBER GANDHI: And then in the
10 letter on the first page it says "via email
11 PDF with attachment." Do you see that?
12 MR. KLINE: Yes, I do.
13 MEMBER GANDHI: Okay. But you're
14 saying you never got an attachment?
15 MR. KLINE: No.
16 MEMBER GANDHI: Okay. I was
17 handed attachments just right now, and I'm
18 reading through it. Do you remember how many
19 attachments you put in?
20 MR. MALLOF: Well, I mean, it
21 should have been only what was referenced in
22 the letter.

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1 MEMBER GANDHI: Okay. I did see a
2 PowerPoint. On the June 28th letter it
3 basically mentions the PowerPoint comments in
4 No. 2 on the third page, correct?
5 MR. MALLOF: Yes, sir. We
6 attempted to address chapter and verse of the
7 petition as citizens. We read requests for
8 objections, we got a petition. We responded
9 to the petition.
10 MEMBER GANDHI: Mr. Kline, let me
11 show you the document that I have, that I was
12 handed by the general counsel.
13 MR. KLINE: Sure.
14 MEMBER GANDHI: And tell me if
15 you've ever seen it. I can probably tell the
16 answer already, but let me just show it to you
17 anyway. This is the PowerPoint and it was
18 attached, it was definitely attached to people
19 at ABRA.
20 MR. KLINE: Yes, I've seen it.
21 MEMBER GANDHI: Okay. You've seen
22 it?

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2 MEMBER GANDHI: Okay. Where have
3 you seen it?
4 MR. KLINE: I think it was
5 attached to the original June 7th letter.
6 That's where I've seen it.
7 MEMBER GANDHI: Okay. It was in
8 the June 7th letter?
9 MR. KLINE: Yes, that's where I
10 have it, is attached to the June 7th letter.
12 MR. KLINE: But be that -- you go
13 and then tell me when I can talk. It's your
14 turn.
15 MEMBER GANDHI: Okay. So, to
16 entertain it at least, tell me how you don't
17 believe that this PowerPoint addresses the
18 appropriateness standard?
19 MR. KLINE: All right. Regardless
20 of what's in the PowerPoint, the letter, which
21 is the Letter of Objection, is what it's
22 labeled --

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2 MR. KLINE: -- it doesn't say,
3 gee, attached in the PowerPoint is the reasons
4 that we protest this license on the grounds of
5 appropriateness. What it says is, "Please see
6 the attached detailed PowerPoint comments
7 regarding the weak and untrue statements in
8 the petition." Nowhere does that meet the
9 requirements of the regulations which require
10 that in order for a valid protest to be filed
11 that the Protestants articulate one or more of
12 the appropriateness criteria. So, even though
13 the attachment may talk about those things, I
14 don't think one can read that June 28th letter
15 and say, well, gee, they're protesting on the
16 grounds of peace, order and quiet, they're
17 protesting on the grounds of adverse impact on
18 real property values. The incorporation of
19 the PowerPoint, it's not incorporated for that
20 purpose. If it were, then yes, I would say
21 that might make some sense. But here where it
22 says, gee, see the attached where everything's

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1 untrue, it doesn't seem to me that that, at
2 least in my mind, goes far enough to
3 articulate an opposition to the termination
4 request based upon one of the appropriateness
5 standards.
6 MEMBER GANDHI: Got it. So if you
7 said in the letter, if it explicitly said the
8 PowerPoint is the reason for the basis that we
9 are protesting the termination, then you'd be
10 okay with it because you feel that it's
11 appropriate. But because there is different
12 language there, you don't believe that it
13 satisfies the code?
14 MR. KLINE: I'm not sure without
15 looking at it in more detail that it even
16 would satisfy the code.
17 MEMBER GANDHI: Well, that's the
18 crux of it. For me it is.
19 MR. KLINE: If it were properly
20 incorporated --
22 MR. KLINE: -- because, for

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1 example, I'm looking at -- I mean this is a
2 March 14th, 2005 letter that's incorporated.
3 So, I don't know how we can say --
4 MEMBER GANDHI: The PowerPoint
5 says June 28th. The first page.
6 MR. KLINE: I'm looking at all the
7 attachments that I've been handed.
8 MEMBER GANDHI: Yes, the first --
9 MR. KLINE: One is the letter.
10 MEMBER GANDHI: I'm looking at the
11 PowerPoint. That's all.
12 MR. KLINE: Okay.
13 MEMBER GANDHI: Because I did look
14 through everything else, but the PowerPoint
15 was the most interesting thing to me.
16 MR. KLINE: Okay. That's fine.
17 MEMBER GANDHI: It says June 28th
18 on the PowerPoint.
19 MR. KLINE: It says Dupont has a
20 disproportionate number of the best
21 restaurants in the entire D.C. Metro area.
22 That's true.

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1 MEMBER GANDHI: And really Nos. 7
2 and 8 sort of talk about it, but they also
3 talk about Lauriol Plaza and 18th and T more
4 than anything else.
5 MR. KLINE: Yes, they have no
6 interest. Lauriol Plaza, Lauriol Plaza. I
7 dropped a neutron bomb of Lauriol Plaza in
8 Adams Morgan. I mean, just none of that seems
9 relevant to specifically this location. Over-
10 concentration is not an issue with respect to
11 a renewal or a VA termination request.
12 MEMBER GANDHI: I guess really No.
13 8 where it talks about -- granted that it's
14 really comparing it, I think with Lauriol
15 Plaza. At least that the gist I got. And
16 then it talks about peace, order and quiet and
17 it also talks about properties nearby remain
18 standing, but the impacts have been severe
19 adverse and to the clear detrimental quality
20 of life, peace, order and quiet and property
21 values. Now, one can say of that --
22 MR. KLINE: I'm sorry, where are

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1 you reading?
2 MEMBER GANDHI: Really slides 7
3 and 8.
4 MR. KLINE: Slides 7 and 8?
5 MEMBER GANDHI: Yes. But my
6 question is, you know, after you read a
7 PowerPoint like this -- I'm not saying you
8 did, because it wasn't attached or whatever
9 the case may be, but if you were to read
10 something like this, would you get a sense of
11 the reason that they're opposing your
12 termination? That's where you started off.
13 Now, look this may be a clear
14 miscommunication where you sent an email, it
15 went to certain parties, it didn't go to
16 everyone else. I can understand that. I
17 don't know if that's what happened or not, but
18 I need to figure that out.
19 MR. KLINE: Well, a couple points.
20 I mean, one is obviously if the protest
21 letter, which is the June 28th letter,
22 explicitly said the reasons for our protest

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1 are outlined in the attachments, then that
2 might be a different situation. But --
3 MEMBER GANDHI: So, it says No. 2,
4 the reasons to terminate offered in paragraphs
5 7, 8 and 9 of the petition are both untrue on
6 their face and also support arguments beyond
7 the scope of the in-force agreement for the
8 record in this matter. Please see the
9 attached detail PowerPoint comments regarding
10 the weak and untrue statements of the
11 petition.
13 MEMBER GANDHI: These require no
14 further comment here.
15 MR. KLINE: But they do require
16 further comment, because in order -- under the
17 regulations in order to articulate a bona fide
18 protest the rules require that they be -- the
19 magic words have to be there. We protest on
20 the grounds of peace, order and quiet. We
21 protest on the ground of adverse impact on
22 real property values.

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2 MR. KLINE: Otherwise, we're
3 just --
4 MEMBER GANDHI: As I'm
5 understanding it --
6 MR. KLINE: -- bootstrapping and
7 we're saying, oh, well, there's a bunch of
8 stuff attached and there are some issues
9 raised. That doesn't communicate the basis
10 for a protest. I mean, it's --
11 CHAIRMAN BRODSKY: All right. Mr.
12 Mallof, you're saying it does communicate?
13 MR. MALLOF: Well, sir, in every
14 legal document I've ever signed the exhibits
15 are an integral part of the document, end of
16 discussion.
17 We attempted as lay people to
18 respond to -- once we saw the formal request
19 for an objection, we attempted to respond to
20 the three things, (A), (B), (C) in this
21 section of the statute that's been talked
22 about. Specifically, (C) talks about won't

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1 have an adverse impact. And we laid out here
2 chapter and verse as an integral part of the
3 letter, especially in slide No. 8, our fears
4 that breaking the Voluntary Agreement would
5 result in Lauriol-like conditions that have
6 decreased property values as we believe them.
7 And I did use the magic POQ on
8 slide 8, along with I think we even talked
9 about vehicular and pedestrian safety. So, we
10 did the acid test. With our understanding
11 also that as signatories to the agreement,
12 where this had already been visited and we
13 felt the agreement itself represents a settled
14 condition, that in breaking it we didn't have
15 to go back to that in the first place. But we
16 do go back to it and we tried to respond
17 directly to Mr. Kline's petition specifically.
18 And I think we matched it up pretty well with
19 the PowerPoints and his petition. So, I don't
20 know what more to do.
21 MR. KLINE: If I may, two points.
22 Yes, exhibits are deemed incorporated into the

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1 document for the purpose for which they're
2 referenced in the document. That's number
3 one.
4 Number two, let's look at this.
5 "Property values and peace, order and quiet,
6 quality of life within 300 feet of Lauriol
7 Plaza have been severely and negatively
8 impacted and residents there who remain can
9 verify the overall quality of daily life has
10 declined for the most proximally affected. Of
11 course if you're visiting from out of town and
12 staying at the nearby Hilton, it's all swell."
13 What does this have to do with
14 Hank's Oyster Bar? It's talking about Lauriol
15 Plaza.
16 "Counsel to Hank's was directly
17 responsible for dropping the oversized out-of-
18 scale Lauriol-like kind of neutron bomb on
19 proximally impacted residents on the corner of
20 18th and T." Again, 18th and T. What does
21 this have to do with the 1600 block of Q
22 Street?

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1 "The properties nearby remain
2 standing today, but the impacts have been
3 severe, adverse and to the clear detriment of
4 quality of life." Again, we're talking about
5 18th and T. We're not talking about the 1600
6 block of Q Street.
7 "The moratorium exists to protect
8 the diversity of businesses, not to squeeze
9 out more non-ANC merchants. The Board has no
10 authority to continue to over-concentrate."
11 I don't see anything in slide 8;
12 if that's what we're going to rely on, that
13 says we oppose Hank's Oyster Bar because of
14 peace, order and quiet. Now, if this were
15 attached to a protest against Lauriol Plaza,
16 yes, absolutely. What does it have to do with
17 this application?
18 CHAIRMAN BRODSKY: Trying to
19 figure that out.
20 All right. Thank you all very
21 much. We're going to take this under
22 advisement. We'll be right back.

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1 (Whereupon, at 2:21 p.m. off the
2 record until 3:08 p.m.)
4 We're back on the record.
5 With respect to the two motions
6 that we have in front of us, it is my first
7 recommendation to the Board that we dismiss
8 the Dupont Circle Citizens Association from
9 the protest hearing.
10 How say you, Mr. Alberti?
11 MEMBER ALBERTI: I agree, Mr.
12 Chair.
13 CHAIRMAN BRODSKY: Mr. Brooks?
14 MEMBER BROOKS: I agree.
15 CHAIRMAN BRODSKY: Mr. Gandhi?
16 MEMBER GANDHI: I agree.
17 CHAIRMAN BRODSKY: Mr. Jones?
18 MEMBER JONES: I agree.
19 MEMBER GANDHI: Mr. Nophlin's not
20 here. And I, Charles Brodsky, agree. That's
21 five in favor, none opposed. So, that motion
22 is passed.

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1 It is my second recommendation to
2 the Board that we dismiss the Group of Five
3 from the protest hearing.
4 How say you, Mr. Nophlin?
5 MEMBER NOPHLIN: I agree.
6 CHAIRMAN BRODSKY: How say you,
7 Mr. Alberti?
8 MEMBER ALBERTI: I disagree, Mr.
9 Chairman.
11 Mr. Brooks?
12 MEMBER BROOKS: I disagree.
14 Mr. Jones?
15 MEMBER JONES: I agree and as a
16 reason for my agreement I want to reference 23
17 DCMR 1605.2, which states that all protests
18 shall be in writing, shall be received by the
19 Board prior to the end of the protest period
20 and shall state as grounds for the protest why
21 the matter being objected to is inappropriate
22 under one or more of the appropriateness

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1 standards set out in D.C. Official Code 25-313
2 and 25-314 and 400 of this title. And I do
3 not feel as though that burden was met.
4 CHAIRMAN BRODSKY: Thank you.
5 Mr. Gandhi?
6 MEMBER GANDHI: Mr. Chair, I will
7 tell you that I do not agree with your motion,
8 primarily because I believe Mr. Mallof's
9 letter and attachments did include all the
10 relevant information. And so therefore I do
11 not agree.
12 CHAIRMAN BRODSKY: And I, Charles
13 Brodsky, agree. So, that's three in favor,
14 three opposed. So, the Group of Five will not
15 be dismissed from the protest.
16 And then on the second motion, I
17 recommend to the Board that we deny the Group
18 of Five's Motion to Dismiss the Petition to
19 Terminate the Voluntary Agreement.
20 How say you, Mr. Nophlin?
21 MEMBER NOPHLIN: Agree, Mr.
22 Chairman.

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2 MEMBER BROOKS: Agree.
4 MEMBER GANDHI: I agree.
6 MEMBER JONES: I agree.
7 CHAIRMAN BRODSKY: And I, Charles
8 Brodsky, agree. That's all in favor, none
9 opposed.
10 We're going to proceed forward
11 with the protest hearing now with the Group of
12 Five being seated as the only Protestant
13 group.
14 Ms. Diener, thank you so much for
15 being here.
16 Mr. Kline, how many witnesses will
17 you present today?
18 MR. KLINE: Three.
19 CHAIRMAN BRODSKY: Mr. Hibey, now
20 many witnesses?
21 MR. HIBEY: I think I only have
22 three remaining. We had more earlier, but --

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1 CHAIRMAN BRODSKY: Three
2 witnesses?
3 MR. HIBEY: I have four witnesses?
4 PARTICIPANT: Yes.
5 MR. HIBEY: I have four witnesses.
6 CHAIRMAN BRODSKY: We assume
7 they'll all be testifying as to something
8 different, not duplicative?
9 MR. HIBEY: Yes.
10 CHAIRMAN BRODSKY: Where's our
11 good investigator today? Somewhere in the
12 audience? There we go.
13 MR. KLINE: Mr. Chairman, before
14 we proceed may I get one issue clarified?
15 CHAIRMAN BRODSKY: Yes, sir, you
16 can try?
17 MR. KLINE: Is it the Board's
18 position that the Licensee must prove 25-
19 446(A), (B) and (C), or merely (C)?
20 CHAIRMAN BRODSKY: One moment.
21 Mr. Kline?
22 MR. KLINE: Yes, sir?

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1 CHAIRMAN BRODSKY: Just (C).
2 MR. KLINE: Okay. Thank you.
4 That's 25-446(C), right?
5 MR. KLINE: 25-446(d)(4)(C).
6 CHAIRMAN BRODSKY: (C). Yes,
7 there you go. Thank you.
8 MR. HIBEY: Can I state on the
9 record my objection to that?
10 CHAIRMAN BRODSKY: Yes, sir, you
11 may. I'm sure that's not the first objection
12 I'll hear through the process.
13 MR. HIBEY: I just want to say
14 that the statute requires the Licensee to
15 prove 25-446(d)(4)(A), (B) and (C).
16 CHAIRMAN BRODSKY: Thank you, sir.
17 So duly noted.
18 All right. Mr. Kline, you waive
19 the rule on witnesses?
20 MR. KLINE: Yes.
22 MR. HIBEY: Yes.

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1 CHAIRMAN BRODSKY: Thank you very
2 much. Mr. Kline, your first witness?
3 There's an hour-and-a-half total
4 time.
5 MR. KLINE: Yes, we'd be calling
6 the investigator first.
7 CHAIRMAN BRODSKY: Oh, I'm so
8 sorry. Mr. Investigator, you're standing
9 right there. I should just look up every once
10 in a while. You're kind of hard to miss.
11 Raise your right hand. Do you
12 affirm that the testimony you give is the
13 truth, the whole truth, nothing but the truth?
14 INVESTIGATOR BAILEY: I do.
16 Mr. Investigator, where are you employed and
17 your name, please, if you would?
18 INVESTIGATOR BAILEY: My name is
19 Investigator David Bailey. I'm employee with
20 the Alcohol Beverage Regulation Administration
21 for about four years now.
22 CHAIRMAN BRODSKY: Thank you, Mr.

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1 Bailey. Would you like to give us your
2 thoughts here on this matter?
3 INVESTIGATOR BAILEY: Well, I was
4 assigned the protest regarding the termination
5 of a Voluntary Agreement for Hank's Oyster Bar
6 located at 1624 Q Street, Northwest.
7 Originally there were two
8 Protestants in this case, but now I'm informed
9 that there is only one, which I spoke to on
10 Tuesday, September 21st. I conducted a
11 telephone interview with Alexis Rieffel. He
12 represented the Group of Five.
13 Mr. Rieffel stated the following
14 issues regarding his protest. He said the
15 establishment has not presented a reasonable
16 argument as to why the VA should be
17 terminated. He stated that the VA was put in
18 place so that the residents can maintain some
19 order and the establishment now wants to
20 expand its business and this expansion will
21 affect the property values in the area.
22 There are approximately 22 ABC

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1 licensed establishments in the close proximity
2 to Hank's Oyster Bar, one that holds a class
3 B license, one that holds a class CX, two that
4 hold a class CH, two that hold a class A, two
5 that hold a class CT, two that hold a class DR
6 license and the remaining 12 hold a class CR
7 license.
8 You will also see attached as
9 exhibits are the maps and layouts for the
10 establishment that were done using the
11 District of Columbia Geographic Information
12 System. One map shows that there are no
13 schools, recreations centers, public libraries
14 or day cares within 400 feet of Hank's Oyster
15 Bar, but there is a Stead Recreation Center
16 that's located approximately 281 feet from
17 Hank's Oyster Bar. The other map of course
18 shows the 22 other ABC licensed establishments
19 within 1,200 feet of Hank's Oyster Bar.
20 The parking area is as follows
21 surrounding Hank's Oyster Bar. Both in the
22 1600 block and the 1700 block of Q Street

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1 there is two-hour parking Monday through
2 Friday from 7:00 a.m. to 8:30. It's limited
3 to zone 2 on both the north and south sides.
4 There is one-hour parking also in the 1600
5 block of Q Street. In the 1500 block of 17th
6 Street, there is one-hour parking Monday
7 through Friday between 7:30 to 6:30 p.m.
8 Okay. There's also a parking garage located
9 at 1616 P Street that has about 200 spaces and
10 the garage is open until 11:00 p.m. on Sunday
11 through Thursday and open until 12:00 a.m. on
12 Fridays and Saturdays. This garage is located
13 also directly across the street from the
14 recreation center, which is approximately 281
15 feet from the establishment.
16 Of course Hank's Oyster Bar is
17 located on the 1600 block of Q Street and
18 right next door to the establishment is an
19 existing ABC establishment and also directly
20 across the street is another ABC
21 establishment, as well as across the street
22 there is also an office and apartments. And

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1 also located in the 1600 block are residential
2 houses.
3 Hank's Oyster Bar is basically a
4 one-story building which contains a kitchen,
5 two bathrooms, one bar area and a few seats
6 inside as well as they also have a sidewalk
7 caf‚ that also has a few seats on the outside
8 as well.
9 I conducted an interview with
10 Jamie Leeds, the owner of Hank's Oyster Bar.
11 She stated that she was aware of the protest
12 issue. She has been in business for five
13 years and has not had any major violations.
14 Ms. Leeds also stated that she felt forced to
15 sign the Voluntary Agreement in order to open
16 up the business. Ms. Leeds further stated
17 that she only wants to grow her business and
18 is willing to work with the community.
19 The establishment was visited by
20 ABRA investigators for a total of 29 separate
21 occasions from August 24th, 2010 until October
22 5th, 2010. During these visits ABRA reported

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1 no trash or noise, but did observe that there
2 was no parking available on Q Street, but
3 there was some parking available on 17th
4 Street.
5 We also pulled the Metropolitan
6 Police Department Crime Analysis and
7 Intelligence Bureau records, which show that
8 two calls for service were made to the address
9 for Hank's Oyster Bar, none of them resulting
10 in an ABRA report.
11 That concludes my findings, sir.
13 Any questions from the Board? Any
14 Board Members questions?
15 (No audible response.)
16 CHAIRMAN BRODSKY: Mr. Kline, any
17 questions for the investigator?
18 MR. KLINE: Yes. Good afternoon,
19 Investigator Bailey. You testified about a
20 parking lot in the 1500 block of 16th Street,
21 correct?
22 INVESTIGATOR BAILEY: A parking

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1 lot in the 1600 block of P Street.
2 MR. KLINE: The 1500 block of P
3 Street? Okay.
4 INVESTIGATOR BAILEY: The 1600
5 block of P Street.
6 MR. KLINE: Okay. Page 3 of your
7 report, if you could refer to that, and we'll
8 make sure that we have the -- oh, I'm sorry.
9 1616 P Street is what we're talking about?
10 INVESTIGATOR BAILEY: Yes, that's
11 where the parking garage is.
12 MR. KLINE: Okay. When you
13 visited that parking lot, were there spaces
14 available, do you know?
15 INVESTIGATOR BAILEY: Yes, at the
16 time that I went there were spaces available.
17 People were leaving that parking lot, as well
18 as some people coming in.
19 MR. KLINE: Okay. Great. Thank
20 you. I have no further questions.
22 MR. HIBEY: Good afternoon. When

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1 you visited the Licensee did you ever visit or
2 investigate the premises after it was closed?
3 INVESTIGATOR BAILEY: Yes, during
4 the time -- yes, some of the times that we
5 monitored the establishment was closed during
6 those times as well.
7 MR. HIBEY: Okay. And would those
8 have been recorded on your report?
9 INVESTIGATOR BAILEY: Well, you
10 can also tell by the times that they were
11 there. It doesn't state whether they were
12 closed or not, but of course you can see that
13 according to the operation hours and according
14 to the time that some of those visits were
15 made that the establishment was not in
16 business during that time.
17 MR. HIBEY: Okay. Could you look
18 at page 5 of your report?
19 INVESTIGATOR BAILEY: Okay.
20 MR. HIBEY: The third, fourth,
21 fifth ones down all say Friday, August 27th.

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1 MR. HIBEY: Do you know what time
2 you visited on those days?
3 INVESTIGATOR BAILEY: It says
4 12:35 a.m. This should have been to 12:50
5 a.m. And then 1:05 a.m. to 1:20 a.m. Then
6 1:00 p.m. to 1:21 p.m.
7 MR. HIBEY: Are you sure about
8 that?
9 INVESTIGATOR BAILEY: Yes, I do
10 have the exhibit here that I made.
11 MR. HIBEY: So, the third one you
12 visited earlier than the first two on that
13 day, right? Is that what you're saying now?
14 INVESTIGATOR BAILEY: The third
15 would have been in the afternoon from 1:00
16 p.m. until 1:21 p.m.
17 MR. HIBEY: Okay.
18 INVESTIGATOR BAILEY: The other
19 two were in the early parts of the morning,
20 the late hours of Thursday night to Friday
21 morning.
22 MR. HIBEY: You didn't visit the

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1 premises of the Licensee when it was open
2 after -- I don't want to say open at 2:00 a.m.
3 on a Friday, did you?
4 INVESTIGATOR BAILEY: 2:00 a.m. on
5 a Friday, not to my knowledge. All these were
6 not just done by myself. They were also done
7 by other ABRA investigators. So none of them
8 report that the establishment was still open
9 during the time they weren't supposed to be.
10 MR. HIBEY: Your report also
11 discusses characteristics of the neighborhood.
12 It's the bottom of page 1 and it goes onto
13 page I guess 2 and 3. Section 2,
14 characteristics of the neighborhood.
16 MR. HIBEY: How long have you been
17 an ABRA investigator?
18 INVESTIGATOR BAILEY:
19 Approximately four years, sir. Four years at
20 the end of this month.
21 MR. HIBEY: Okay. Do you know
22 whether any of these 22 ABC licensed

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1 establishments that you listed on your report
2 were open in 2005?
3 INVESTIGATOR BAILEY: I cannot
4 testify to that, sir.
5 MR. HIBEY: Okay.
6 INVESTIGATOR BAILEY: There were
7 ABC establishments over there. The trade
8 names have changed. The ownerships have
9 changed.
10 MR. HIBEY: Have you seen the
11 Voluntary Agreement between the Licensee and
12 our group?
13 INVESTIGATOR BAILEY: Yes, I have.
14 MR. HIBEY: You have?
15 INVESTIGATOR BAILEY: Yes.
16 MR. HIBEY: And where did you see
17 that, or why did you see that?
18 INVESTIGATOR BAILEY: It's just
19 routinely pulled for the protest case just to
20 review what it said. It's also part of my
21 exhibits for my case.
22 MR. HIBEY: Okay. I don't have

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1 any other questions.
2 CHAIRMAN BRODSKY: Any other
3 questions from the Board?
5 CHAIRMAN BRODSKY: I did have one
6 question, Mr. Investigator. In your research
7 how many times did you visit this
8 establishment?
9 INVESTIGATOR BAILEY: Twenty-nine,
10 I believe, sir.
11 CHAIRMAN BRODSKY: Twenty-nine
12 times?
13 INVESTIGATOR BAILEY: Yes, sir.
14 CHAIRMAN BRODSKY: I noticed in
15 the Voluntary Agreement that is currently in
16 place with the Oyster Bar that it limits in
17 particular their hours of sales of alcoholic
18 beverages on Friday and Saturday to 1:00 a.m.
19 And I noticed that right next -- forgive me if
20 it's not actually right next door, but I think
21 Trio's is pretty close to it, right?
22 INVESTIGATOR BAILEY: Right, it is

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1 right next door.
2 CHAIRMAN BRODSKY: Is it pretty
3 much next door? And then Agora, which is also
4 I think pretty close to next door. So, those
5 folks are currently serving and selling
6 alcohol until 2:00 a.m. and 3:00 a.m. Saturday
7 and Sunday, respectively. Did you happen to
8 notice any reason why, other than it's in the
9 Voluntary Agreement -- was there a specific
10 reason that you could see why they wouldn't be
11 selling the same service and hours that Hank's
12 Oyster Bar? Is there some safety reason or
13 something?
14 INVESTIGATOR BAILEY: Other than
15 what's written in the Voluntary Agreement is
16 the only thing I can tell you why they
17 wouldn't be open during that time.
18 CHAIRMAN BRODSKY: And did you
19 talk to or investigate the economic impact to
20 Hank's Oyster Bar of being closed four or five
21 hours earlier each week than anybody else next
22 to them?

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1 INVESTIGATOR BAILEY: Say that
2 just one more time.
3 CHAIRMAN BRODSKY: Did you do any
4 investigation into the economic impact on
5 Hank's Oyster Bar by being closed four or five
6 hours earlier than everybody else around them
7 in a given week?
8 INVESTIGATOR BAILEY: No, sir.
10 INVESTIGATOR BAILEY: No, sir.
11 CHAIRMAN BRODSKY: I was just
12 curious.
13 Okay. Any other questions from
14 the Board? Mr. Jones? You all good?
15 MEMBER ALBERTI: Mr. Chairman, jus
16 ton that line. In comparison to the size of
17 the establishments that the Chairman just
18 referenced, how large is Hank's Oyster Bar?
19 Is it smaller? Is it larger?
20 INVESTIGATOR BAILEY: Than the
21 other establishments which he --
22 MEMBER ALBERTI: Yes.

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1 INVESTIGATOR BAILEY: It's smaller
2 than the other establishments that he made
3 reference to.
4 MEMBER ALBERTI: Okay. Thank you.
5 CHAIRMAN BRODSKY: So, they have
6 larger establishments that are open later?
7 INVESTIGATOR BAILEY: That's
8 correct.
10 INVESTIGATOR BAILEY: All right.
11 Well, thank you very much, Mr. Investigator.
12 We appreciate your time and your work. You do
13 a great job.
14 INVESTIGATOR BAILEY: Yes, sir.
15 CHAIRMAN BRODSKY: I'm assuming
16 Mr. Hibey, you have no more questions. I'm
17 sorry. I should have let you --
18 MR. HIBEY: Thank you.
20 Mr. Kline, you want to make an
21 opening statement? Or I'm sorry, you want to
22 call your first witness?

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1 MR. KLINE: I'd love to make an
2 opening statement. I will be brief.
3 CHAIRMAN BRODSKY: I'm sorry. I
4 actually didn't give you guys a chance to do
5 that. I apologize. I went right to bringing
6 our investigator up. You can make a brief
7 opening statement.
8 Mr. Hibey, you'll be next.
9 MR. KLINE: Yes, thank you. Good
10 afternoon, Members of the Board.
11 We're very happy to be here today.
12 I know that Jamie Leeds is very happy to be
13 here today. And the reason that she's happy
14 to be here today is because today she gets
15 what she couldn't get five years ago, which is
16 a hearing.
17 This application was filed. There
18 was a roll call hearing. We came in before
19 the Board and we said we need a hearing. This
20 isn't going to get resolved. And the then
21 members of the ABC Board said, well, go try to
22 work it out. I'm sure you can. You can work

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1 it out. This was not going to get worked out.
2 We need a hearing.
3 The plan in those days was that we
4 would be sent away to try to enter into a
5 Voluntary Agreement. If we couldn't enter
6 into one, we'd come back. We'd have a status.
7 Perhaps, hopefully at that point, the Board
8 would then schedule it for mediation and it
9 would go on and on and on until at some point
10 a hearing was supposed to be scheduled.
11 Now, I can tell you from my
12 knowledge there was a period of five years
13 where I didn't have any protest hearings
14 before this Board. I can't speak for the
15 experiences of others. But as a result of
16 that Ms. Leeds, given the financial
17 constraints, had to enter into a Voluntary
18 Agreement. She really didn't have any choice
19 if she was going to get this restaurant
20 opened.
21 The testimony that you will hear
22 from Ms. Leeds and the other two witnesses she

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1 has here today will demonstrate that whatever
2 fears there were on the part of neighborhood
3 residents concerning the opening of Hank's
4 Oyster Bar were completely unfounded, that
5 this establishment is a restaurant. It
6 operates as a restaurant. It operates without
7 negative impact on the community. It's well
8 liked in the community. It's an amenity for
9 the community. And there just simply is no
10 need for this Voluntary Agreement that Ms.
11 Leeds was forced to sign five years ago. And
12 that's why we've come before you and requested
13 that the Voluntary Agreement be terminated.
14 Thank you.
16 Kline.
17 Mr. Hibey?
18 MR. HIBEY: I think everyone
19 agrees that it's a well-liked restaurant, but
20 that's not a basis to terminate a Voluntary
21 Agreement.
22 I believe the Board's already

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1 decided that we're only going to look at part
2 (C) of Section (4) of the statute, so I won't
3 go in too much on the other parts. But to
4 terminate a Voluntary Agreement the Board must
5 make three findings; and I guess now we're
6 only going to make one, but the one finding
7 that needs to be made is that the termination
8 of the Voluntary Agreement won't have an
9 adverse impact on the neighborhood. And we
10 think it will, and that's why we entered into
11 a Voluntary Agreement. The Voluntary
12 Agreement provides us, the neighborhood, over
13 20 protections against what could happen at a
14 restaurant. And because of the Voluntary
15 Agreement, the Licensee has not had an adverse
16 impact. But it's because of that Voluntary
17 Agreement being in place.
18 So, we're going to go forward on
19 that basis, that the termination of the
20 Voluntary Agreement will -- you will be able
21 to find it will not have an adverse impact.
22 I guess I'd like to speak more on

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1 the other points just briefly to make the
2 record clear.
3 CHAIRMAN BRODSKY: Well, if it's
4 not related to the one specific thing we
5 talked about, I'll expect you to stay focused
6 on that one particular instance. And I'm sure
7 you guys are going to appeal it, so if you
8 want to talk to the court of appeals, they'll
9 have an open ear.
10 MR. HIBEY: Okay. I just --
11 CHAIRMAN BRODSKY: You know, I'd
12 appreciate that. Let's try to keep it.
13 MR. HIBEY: -- wanted to be clear
14 there. So, our position is that the
15 restaurant is well liked, but we need a
16 Voluntary Agreement. It's in place and it can
17 only be terminated a certain way, not just
18 because you didn't get a hearing five years
19 ago, and the termination will have an adverse
20 impact on the neighborhood.
22 much.

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1 Mr. Kline, first witness?
2 MR. KLINE: Yes, I'll call to the
3 stand Mikala Brennan.
4 CHAIRMAN BRODSKY: Hello.
5 MS. BRENNAN: Hello.
7 Could you just stay standing for one second?
8 MS. BRENNAN: Okay.
9 CHAIRMAN BRODSKY: Raise your
10 right hand. Do you affirm the testimony you
11 give is the truth, the whole truth, nothing
12 but the truth?
13 MS. BRENNAN: Yes, sir.
15 Your witness, Mr. Kline.
16 MR. KLINE: Yes. Would you state
17 your name and address for the record, please?
18 MS. BRENNAN: Mikala Brennan.
19 It's spelled M-I-K-A-L-A, last name Brennan,
20 B-R-E-N-N-A-N, 1747 Church Street.
21 MR. KLINE: Where is your
22 residence in relation to Hank's Oyster Bar?

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1 MS. BRENNAN: It's about one-and-
2 a-half blocks.
3 MR. KLINE: Okay. And how long
4 have you resided at that address?
5 MS. BRENNAN: Eleven years.
6 MR. KLINE: And when did you first
7 become familiar with Hank's Oyster Bar?
8 MS. BRENNAN: When it opened in --
9 basically five years ago.
10 MR. KLINE: Have you been in the
11 establishment?
12 MS. BRENNAN: Absolutely.
13 MR. KLINE: Approximately how many
14 times? Any idea?
15 MS. BRENNAN: We go normally twice
16 a month.
17 MR. KLINE: Okay. Tell the Board
18 about the establishment. What kind of
19 establishment is it?
20 MS. BRENNAN: Contemporary
21 restaurant. Very welcome into the
22 neighborhood. We didn't have very much via

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1 17th Street. It's been great having it there.
2 It's increased my property value quite a bit.
3 We're very happy that Hank's has been in the
4 neighborhood.
5 MR. KLINE: In terms of the
6 establishment is it known in the neighborhood
7 as a bar, as a restaurant?
8 MS. BRENNAN: As a restaurant.
9 MR. KLINE: All right. And is
10 there any specific feature about the business
11 that makes it known as a restaurant in your
12 neighborhood?
13 MS. BRENNAN: Quality food.
14 MR. KLINE: Okay. And what about
15 the operator? Does that have anything --
16 MS. BRENNAN: Operator is very
17 well know. We've known her since previous
18 restaurants and she's extremely well-regarded
19 in the community.
20 MR. KLINE: Now, you indicated
21 something about property values. Do you own
22 where you live?

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1 MS. BRENNAN: Yes, I do.
2 MR. KLINE: All right. And given
3 your just knowledge of the neighborhood, do
4 you have knowledge of what property values
5 have done in that neighborhood in the last
6 five years?
7 MS. BRENNAN: I know that mine
8 have quadrupled.
9 MR. KLINE: Okay.
10 MS. BRENNAN: And I think it's
11 very directly related to the development of
12 businesses on our 17th Street area.
13 MR. KLINE: And why is that?
14 MS. BRENNAN: Because prior to my
15 moving there 11 years ago, there wasn't much
16 on that block and so my property value, I got
17 a deal, quite frankly. There wasn't much
18 going on. I bought in the neighborhood and it
19 was actually considered not to be a super safe
20 neighborhood when I moved. The businesses
21 that have come in and done their openings and
22 done will with the community, I think it has

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1 increased our property values.
2 MR. KLINE: Now you're living
3 around the corner, obviously familiar with the
4 1600 block of Q Street where this
5 establishment is located having visited the
6 establishment.
7 MS. BRENNAN: Absolutely.
8 MR. KLINE: Have you had any
9 experience whether the presence of that
10 business on that block has had any effect on
11 safety on that block?
12 MS. BRENNAN: I think it makes our
13 neighborhood more safe.
14 MR. KLINE: Okay. And why is
15 that?
16 MS. BRENNAN: Because there's more
17 affluent I guess people coming into the
18 neighborhood to eat and drink and spend money.
19 We don't have as many kind of hole-in-the-wall
20 dive joints that are bringing in an element
21 that we don't necessarily need.
22 MR. KLINE: Okay. Now, in terms

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1 of the way the establishment has been run,
2 have you seen any impact on peace, order and
3 quiet in your neighborhood from the
4 establishment?
5 MS. BRENNAN: No, not in general.
6 I do know that they have a -- you know, the VA
7 and I know that they close their establishment
8 at a certain point. I've never had any noise
9 issues when we've walked past their -- when
10 they're closed. I'm familiar with some of the
11 other restaurants on 17th Street that do
12 provide a lot of noise.
13 MR. KLINE: Okay. Now what about
14 during the times the establishment is open?
15 Are there any noise issues then?
16 MS. BRENNAN: No, sir.
17 MR. KLINE: In terms of the crowd,
18 does it attract a crowd that's disorderly or
19 disruptive --
21 MR. KLINE: -- in the
22 neighborhood? Let me finish my question --

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1 MS. BRENNAN: Sorry.
2 MR. KLINE: -- before you answer
3 or this gentleman over here will have a hard
4 time.
5 Does the restaurant attract a
6 crowd that's disruptive to the neighborhood in
7 any way?
9 MR. KLINE: Parking is a problem
10 in the neighborhood, is that correct?
11 MS. BRENNAN: I think in general,
12 yes.
13 MR. KLINE: Does this
14 establishment create undue demand for parking
15 in the neighborhood in your experience?
16 MS. BRENNAN: Not in my
17 experience, no.
18 MR. KLINE: Okay. Do you have any
19 knowledge as to whether this establishment has
20 any effect on pedestrian safety in the
21 neighborhood?
22 MS. BRENNAN: No, I do not.

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1 MR. KLINE: Okay. That's all I
2 have of this witness at this time. Thank you.
5 Good afternoon.
6 MS. BRENNAN: Hello.
7 MR. HIBEY: Have you read the
8 Voluntary Agreement between the parties?
10 MR. HIBEY: So you don't know
11 what's in the Voluntary Agreement?
12 MS. BRENNAN: Not the specifics,
13 no, sir.
14 MR. HIBEY: I don't have any more
15 questions.
16 CHAIRMAN BRODSKY: From the Board?
17 Yes, sir, Mr. Gandhi?
18 MEMBER GANDHI: Thank you, Mr.
19 Chairman.
20 Thank you for your time and thank
21 you for staying here. You had mentioned that
22 there are no noise issues when they're closed,

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1 correct?
2 MS. BRENNAN: During operating
3 hours, no, there is no --
4 MEMBER GANDHI: During operating
5 hours for Hank's?
6 MS. BRENNAN: Yes.
7 MEMBER GANDHI: Okay. But how
8 about the other establishments that you talked
9 about? You said know of other establishments
10 that are loud.
11 MS. BRENNAN: Correct.
12 MEMBER GANDHI: Tell me about
13 them.
14 MS. BRENNAN: Those ones that are
15 open until 3:00 in the morning, then there's
16 an outflow of people, but that's normally at
17 the bar that's located right where I live.
18 MEMBER GANDHI: Okay. So, are you
19 against establishments that are open pretty
20 late at night?
22 MEMBER GANDHI: So, you support

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1 establishments that are open until 3:00 in the
2 morning, until full legal hours in your
3 neighborhood?
4 MS. BRENNAN: Yes, sir, they don't
5 impact my living.
6 MEMBER GANDHI: They don't impact
7 you?
8 MS. BRENNAN: No.
9 MEMBER GANDHI: Great. And this
10 hearing today is about termination of a
11 Voluntary Agreement, but you've never read the
12 Voluntary Agreement, correct?
14 MEMBER GANDHI: Okay. Great. I
15 have no further questions.
16 CHAIRMAN BRODSKY: Board Members?
17 Mr. Alberti?
18 MEMBER ALBERTI: Yes, Ms. Brennan,
19 have you ever been by or been in Hank's Oyster
20 Bar late, at say 11:00, 12:00 at night?
21 MS. BRENNAN: Yes, sir.
22 MEMBER ALBERTI: Can you describe

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1 to me what the atmosphere is like there?
2 MS. BRENNAN: Very quiet, quite
3 frankly.
4 MEMBER ALBERTI: Okay. How so?
5 Is it just --
6 MS. BRENNAN: People are having a
7 glass of wine, enjoying their dinner. It's
8 not a rowdy raucous place. It's a place to
9 have a dinner and enjoy yourself and go home
10 and call it a day.
11 MEMBER ALBERTI: Would you have
12 objections to them being open later than 1:00
13 a.m. on Fridays and Saturdays?
15 MEMBER ALBERTI: Okay. They're
16 currently only able to operate their sidewalk
17 caf‚ from April 1st through November 30th.
18 Would you have objections to them operating
19 the sidewalk caf‚, if we had a nice day; and
20 we sometimes do, outside of those months?
22 MEMBER ALBERTI: Okay. Thank you

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1 very much.
3 Mr. Nophlin, any questions?
4 MEMBER NOPHLIN: No.
6 much.
7 MR. KLINE: Call to the stand Bill
8 Zybach.
9 CHAIRMAN BRODSKY: Hello, sir.
10 I'll just get you to stand real quick. Could
11 you raise your right hand for me? Do you
12 affirm the testimony you give is the truth,
13 the whole truth, nothing but the truth?
14 MR. ZYBACH: I do.
16 MR. KLINE: State your full name
17 and address for the record, please.
18 MR. ZYBACH: My name is Bill
19 Zybach. I reside at 1650 Q Street, Northwest,
20 in the Cairo, across the street from Hank's.
21 MR. KLINE: So, that's directly
22 across the street from Hank's Oyster Bar?

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

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1 have knowledge that the prices have gone up in
2 the neighborhood?
3 MR. ZYBACH: Oh, I do.
4 MR. KLINE: And to what do you
5 attribute that?
6 MR. ZYBACH: Well, I attribute it
7 to what the Williams administration did in
8 terms of bringing capital -- creating a place
9 for capital to come back into the District,
10 and the evolution. There has been a
11 renaissance in D.C., particularly in the
12 Dupont Circle area, the U Street, the 14th
13 Street area, and it was interesting to me to
14 watch that evolution occur.
15 And at the same time I'm gay. I
16 live in Dupont Circle. Gay Monopoly has 17th
17 Street as a place on Gaynopoly. People know
18 about this area as a gay area. But it did not
19 actually evolve like some of the other
20 neighborhoods did. And part of that was we
21 have these groups that act as though they
22 represent us in the neighborhood. And

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1 actually some of us have disassociated
2 ourselves from them because they actually
3 don't represent how we'd like the community to
4 grow. The community has grown beyond being a
5 gay 'hood. Now there's strollers on the
6 streets, you know, people have moved into the
7 neighborhood. And part of that is because of
8 businesses like Jamie's, what we never had, a
9 really cool, upscale, friendly, local business
10 that served the kind of food and beverage and
11 relationship that they brought.
12 To me; and it's been interesting,
13 I hope you don't mind this, but I sat here for
14 three hours and listened to people talk about
15 lot of words, and that's an interesting
16 exercise, but costly. Now, I do organization
17 design and it's like the cost that's gone into
18 the research, investigation, your time, our
19 time and what is missing from that is the
20 relationship. Our community is growing and
21 Jamie is a pioneer, like I was a pioneer when
22 I moved into the Cairo and remodeled my place

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1 and --
2 MR. KLINE: Let me see if we can
3 get back on track here.
4 MR. ZYBACH: Sorry. Okay. My
5 apologies.
6 MR. KLINE: I'm going to ask you
7 some more questions here.
8 MR. ZYBACH: Go ahead.
9 MR. KLINE: You've been in this
10 establishment obviously?
11 MR. ZYBACH: Absolutely.
12 MR. KLINE: How many times would
13 you estimate?
14 MR. ZYBACH: Too many. We could
15 check my Visa card. I walk by it everyday.
16 MR. KLINE: Okay.
17 MR. ZYBACH: So --
18 MR. KLINE: And what times of day
19 do you walk by it?
20 MR. ZYBACH: All different times
21 of day. I go to work in the morning, so I
22 pass it in the morning and when I come home in

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1 the evening, and when I go out.
2 MR. KLINE: All right. Now, in
3 walking by it you've obviously had an
4 opportunity to observe its operation, correct?
5 MR. ZYBACH: Yes, I have.
6 MR. KLINE: What have you observed
7 with respect to the effects of the
8 establishment, if any, on the peace, order and
9 quiet in the neighborhood?
10 MR. ZYBACH: Well, similarly to
11 the last person who testified, Hank's is not
12 like the bars on 17th Street. It's a quiet
13 place. It's small. I mean, the actual bar in
14 the restaurant has four or five seats. It's
15 a place where people go and dine. And people
16 come from all over the city to meet and have
17 conversation. So, to me it's very different
18 than any of the kinds of places that 17th
19 Street has been known for in the past. And I
20 think it's a great kind of quiet, great food,
21 upscale, a little more sophisticated.
22 MR. KLINE: All right. Now you

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1 mentioned that people come from all over the
2 District.
3 MR. ZYBACH: Yes.
4 MR. KLINE: How do they get there
5 and where do they park, do you know?
6 MR. ZYBACH: Again, for me, most
7 of the people who come from different places
8 -- and again, I like to frequent it. It's
9 right across the street. I'm not that good of
10 a cook and Jamie's a much better cook than I
11 am. And people come by Metro. We have bike
12 racks now. People bike. And if you notice,
13 in that area there's frequently lots of bikes
14 and people do bike there.
15 MR. KLINE: Okay.
16 MR. ZYBACH: In terms of the
17 parking, you know, parking has been a
18 challenge, and it's not because of Jamie's
19 business that it's been a challenge. And
20 besides that, it doesn't hold that many
21 people, but lots of people use mass transit.
22 I mean, we've been working -- you know, the

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1 District has been working to get people to use
2 mass transit, and I think the reason that
3 people are doing that is because parking is
4 tough and people are getting used to using
5 mass transit.
6 MR. KLINE: All right. Now, you
7 heard the investigator testify about other
8 establishments in the neighborhood?
9 MR. ZYBACH: Yes.
10 MR. KLINE: You're aware of other
11 establishments that are open later than the
12 hours that Hank's is permitted to serve
13 alcoholic beverages?
14 MR. ZYBACH: All of them. I am
15 familiar with all of them.
16 MR. KLINE: Okay. All right. And
17 can you recount for the Board the
18 establishments that you're aware of in the
19 immediate vicinity that can serve until 2:00
20 and 3:00?
21 MR. ZYBACH: Well, so there's
22 Annie's, which is around the corner. There's

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1 The Fox. There's Agora. I mean, JR's. Let
2 me see, what else do I have? What are my
3 choices in terms of places that I go or take
4 friends to? I mean, all of the bars, except
5 for Jamie's, as far as I know, have the
6 ability to stay open late.
7 MR. KLINE: All right. Now, you
8 said all of the bars. Agora --
9 MR. ZYBACH: Agora is a
10 restaurant.
11 MR. KLINE: All right. Again, we
12 have a court reporter.
13 MR. ZYBACH: Yes.
14 MR. KLINE: So we can't talk at
15 the same time. Agora, do you consider that a
16 bar or how would you categorize that at this
17 point?
18 MR. ZYBACH: Agora has just
19 recently changed and there have been a number
20 of businesses in that location, and it's
21 turned over a number of times. It has shifted
22 from the last iteration, which was more of a

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1 bar, and now it's more of a restaurant, Agora
2 is.
3 MR. KLINE: And to your knowledge
4 are they open until 2:00 and 3:00?
5 MR. ZYBACH: Yes, to my knowledge.
6 MR. KLINE: Now, you live directly
7 across the street from Hank's Oyster Bar,
8 correct?
9 MR. ZYBACH: Right. Right.
10 MR. KLINE: Do you have concerns
11 about the establishment being able to serve
12 until later than 12:00 and 1:00?
13 MR. ZYBACH: I think it would be a
14 good option for the community to have that
15 kind of an establishment open late, rather
16 than just the bars. I mean, the only other
17 option that we really have in terms of late
18 night food -- because Agora stops serving food
19 earlier, the only other option we have is
20 Annie's. Annie's has no outside space and
21 it's not the same kind of environment. I
22 think it would be a nice addition to be able

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1 to have, you know, a late night snack or
2 drink.
3 MR. KLINE: The establishments
4 that you mentioned, what's the range in terms
5 of how far are they from Hank's Oyster Bar?
6 MR. ZYBACH: So, Hank's is right
7 across the street from me. And then Annie's
8 and Dick's, those are around one corner. So,
9 about a half a block away. And likewise,
10 about a half a block away from Hank's in the
11 other direction, both north and south.
12 MR. KLINE: All right. And I
13 think you mentioned Fox and Hounds as well?
14 MR. ZYBACH: Yes.
15 MR. KLINE: And where is that,
16 just so the Board knows?
17 MR. ZYBACH: So, that's right
18 around -- so, Hank's is on -- we're on Q
19 Street.
21 MR. ZYBACH: Going east and west.
22 So, if you head west and take a right, then

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1 you've got Fox and Hound around the corner.
2 MR. KLINE: Okay.
3 MR. ZYBACH: It's the second.
4 MR. KLINE: So, it's right on 17th
5 Street in roughly the same block as your
6 building?
7 MR. ZYBACH: Right. There's
8 actually two establishments there together.
9 MR. KLINE: Okay. All right.
10 MR. ZYBACH: By the way, and they
11 share part of the Q Street facing area with
12 Hank's.
13 MR. KLINE: Okay.
14 MR. ZYBACH: Yes. They wrap
15 around the corner.
16 MR. KLINE: In your experience
17 living across the street from the
18 establishment, have you ever seen any negative
19 effect on peace, order and quiet as a result
20 of Hank's presence there?
21 MR. ZYBACH: No, I haven't.
22 MR. KLINE: Okay. And have you

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1 ever seen any unsafe situation for vehicles or
2 pedestrians as a result of Hank's being there?
3 MR. ZYBACH: No.
4 MR. KLINE: Okay. I have no
5 further questions of the witness at this time.
7 MR. HIBEY: Good afternoon.
8 MR. ZYBACH: Good afternoon.
9 MR. HIBEY: During your testimony
10 you mentioned a number of restaurants, bars,
11 establishments --
12 MR. ZYBACH: Yes.
13 MR. HIBEY: -- in the vicinity of
14 Hank's.
16 MR. HIBEY: All of those places
17 have been there since before 2005, correct?
18 MR. ZYBACH: There's been some
19 businesses that have turned over, but in terms
20 of having some kind of establishment, yes,
21 they have been.
22 MR. HIBEY: And one that turned

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1 over was Jack's to Agora?
3 MR. HIBEY: Okay.
4 MR. ZYBACH: It was Pepper's
5 before that.
6 MR. HIBEY: Right. You also
7 mentioned that you bought your property in
8 1999.
9 MR. ZYBACH: Correct.
10 MR. HIBEY: And since then your
11 value has --
12 MR. ZYBACH: Tripled.
13 MR. HIBEY: Tripled?
14 MR. ZYBACH: Yes.
15 MR. HIBEY: And you also tied some
16 of the increase in the property value to the
17 presence of Hank's, is that right?
18 MR. ZYBACH: Absolutely.
19 MR. HIBEY: Okay. Are you aware
20 that your property value in the last five
21 years has probably not increased any?
22 MR. ZYBACH: Am I aware that it

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1 hasn't increased? Well, so the assessment
2 increased, but the sale prices -- and again,
3 remember we kind of went through this
4 depression, recession/depression. That
5 affected housing prices across the nation and
6 in the District, but it affected them least in
7 the Dupont Circle area. It was one of the
8 least affected. I was still able, and I was
9 getting solicitations from realtors to sell my
10 place. And places in my neighborhood, they go
11 to market, they sell within two weeks.
12 MR. HIBEY: But your property
13 value hasn't increased from 2005 to today?
14 MR. ZYBACH: Well, and again, I
15 didn't bring the specific data. I think in
16 the last year -- there was one year where the
17 assessment went down from the previous year.
18 MR. HIBEY: Yes.
19 MR. ZYBACH: So that was last year
20 or the year before. Again, I may not be
21 exactly accurate on this, but it went down one
22 year. But my ability to sell the house and

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1 the selling prices for my unit are above my
2 assessment, and they have maintained a higher
3 sell rate than other areas.
4 MR. HIBEY: So, I want to --
5 MR. ZYBACH: And have not been
6 negatively impacted by Hank's. That's the
7 economy. That's what's been happening in the
8 economy. But they have been positively
9 impacted by business. People want to come and
10 live and walk across the street to place like
11 Hank's.
12 MR. ZYBACH: But you just told me
13 that everything's been the same since 2005.
14 MR. ZYBACH: And in terms of my --
15 I said in terms of my assessment. My
16 assessment went down one year in the past five
17 years, but the ability to sell my property has
18 stayed up or maintained, or led the trends in
19 the market. Again, all you have to do is look
20 at people trying to sell real estate in the
21 neighborhood.
22 CHAIRMAN BRODSKY: Sir, we get it.

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1 We get it.
2 MR. ZYBACH: Okay.
4 Mr. Hibey, your next question if
5 any?
6 MR. HIBEY: Have you seen the
8 MR. ZYBACH: No, I haven't, but I
9 know one of the provisions. Again, we talk
10 about it in the neighborhood, about how this
11 group has forced this particular business to
12 agree to things like not staying open. I
13 mean, that's an obvious thing. So, why is
14 that that this particular business has to do
15 this? And I understand the fears that people
16 have and why this was entered into, but
17 they've demonstrated being a good neighbor.
18 And so, to me the issue of having them treated
19 differently than the other businesses doesn't
20 make sense at all. And I don't understand all
21 your agreements and all that new kind of
22 stuff, but it just doesn't make sense to, you

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1 know, single out one business and have other
2 -- I mean, that stuff that was read earlier
3 about Lauriol Plaza and all that, there's
4 other agendas or issues going on. This is not
5 Hank's.
6 MR. HIBEY: Well, so do you think
7 the other establishments that are open until
8 2:00 and 3:00 in the morning, are they louder
9 at 2:00 and 3:00 in the morning?
10 MR. ZYBACH: I live where I live
11 because I --
12 MR. HIBEY: It's sort of a yes or
13 no question.
14 MR. ZYBACH: Well, yes, they are.
15 MR. HIBEY: Okay. Thank you. I
16 don't have any questions.
17 CHAIRMAN BRODSKY: Board Members,
18 any questions?
19 MEMBER ALBERTI: Real quick.
20 CHAIRMAN BRODSKY: Mr. Alberti?
21 MEMBER ALBERTI: Relative to the
22 rest of the District your property values in

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1 your neighborhood, do you feel that they fared
2 better or worse than the rest of the District
3 in general?
4 MR. ZYBACH: They've fared better.
5 MEMBER ALBERTI: Okay. Thank you.
6 And now I just want to go to the sidewalk
7 caf‚. You live right across the street and
8 Hank's got seating for about 20, I think, on
9 their sidewalk caf‚. What do you think is
10 reasonable hours for them to be open in the
11 evening?
12 MR. ZYBACH: Okay. So, there's
13 traffic on 17th Street until the bars close.
14 MEMBER ALBERTI: Yes.
15 MR. ZYBACH: And so to me, having
16 -- and if you go buy, you'll see that Annie's
17 is always busy late. In fact, they stay open
18 24 hours a day on the weekends. And so,
19 having another option in terms of outside
20 seating I think would be valuable. People sit
21 across the street at the Java House, even
22 though it's closed, in their outside seating

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1 area. The police sit out there.
2 MEMBER ALBERTI: So according to
3 you, it wouldn't be inappropriate for those --
4 MR. ZYBACH: No.
5 MEMBER ALBERTI: -- unreasonable
6 for that outdoor patio to be open until the
7 other establishments close?
9 MEMBER ALBERTI: Thank you.
10 MR. ZYBACH: Yes.
12 MEMBER GANDHI: Thanks, Mr.
13 Chairman.
15 MEMBER GANDHI: Thank you for your
16 testimony, sir. Wanted to ask you about the
17 Voluntary Agreement. Do you support the
18 termination of the Voluntary Agreement?
19 MR. ZYBACH: I do.
20 MEMBER GANDHI: Okay. How do you
21 support the termination of a document you've
22 never seen?

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1 MR. ZYBACH: Because I think it's
2 inappropriate. Again, there's lots of
3 technical things that I've never seen, but in
4 terms of the impact -- because all I can do as
5 a resident, because I'm not going to spend my
6 time looking at all these Voluntary
7 Agreements, is see the impact of it. And it
8 seems that they are treated differently than
9 the other businesses and I think that is
10 really, really unfair. And they've been --
11 MEMBER GANDHI: How so?
12 MR. ZYBACH: Because they have to
13 close earlier.
14 MEMBER GANDHI: Okay. Close
15 early. What else?
16 MR. ZYBACH: To me that's the
17 primary thing that I see. Again, not knowing
18 what's in the Voluntary Agreement --
19 MEMBER GANDHI: Okay. Well,
20 that's what the whole hearing's about. All
21 right. So, really it's the closing early to
22 you is the primary reason?

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1 MR. ZYBACH: The primary reason is
2 that I think that -- so again, I don't pay
3 attention to the agreements or the laws of any
4 of the establishments on 17th Street, but I do
5 know that they are treated differently because
6 I don't have the same experience with them
7 that I have with the other businesses.
9 MR. ZYBACH: So, no, I don't know
10 the details. Was I expected to know the
11 details of the Voluntary Agreement?
12 MEMBER GANDHI: That's all right.
13 Thank you so much.
14 MR. ZYBACH: Yes.
15 MEMBER GANDHI: I appreciate your
16 testimony.
17 MR. ZYBACH: Okay.
18 MEMBER JONES: Mr. Chairman?
19 CHAIRMAN BRODSKY: Yes, sir, Mr.
20 Jones.
21 MEMBER JONES: Thank you, Mr.
22 Chairman.

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1 You said you live directly across
2 the street from the Licensee's establishment?
3 MR. ZYBACH: Yes.
4 MEMBER JONES: And you've been
5 there how long again?
7 MEMBER JONES: Since 1998? In
8 terms of peace, order and quiet, I don't know
9 if you're aware that those are I guess
10 generally protest issues.
11 MR. ZYBACH: I heard that earlier.
12 MEMBER JONES: Okay. Are you
13 aware or can you say that you feel as though
14 the operation of this establishment has
15 negatively contributed to your personal peace,
16 order and quiet. Do you feel as safe in your
17 neighborhood? Do you feel more disrupted,
18 more disturbed because of noise because of the
19 operations of this establishment?
20 MR. ZYBACH: I would say that this
21 establishment has reduced -- it's not a noisy
22 establishment like some of the other ones, so

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1 it's kind of mellowed out this part of the
2 neighborhood. So, you asked me the question
3 in a double negative, so I'm not quite sure
4 how to answer.
5 MEMBER JONES: Do you feel as
6 though the operation of this establishment --
7 or tell me how you feel as though the
8 operation of this establishment has impacted
9 your sense of peace, order and quiet?
10 MR. ZYBACH: And I think like the
11 other person who testified, and it's called
12 the broken glass theory, which says if you
13 have nice places as opposed to broken glasses,
14 decrepit places, it attracts nice people and
15 their attitude shifts.
16 MEMBER JONES: Can you give me a
17 concise answer?
18 MR. ZYBACH: It has added to the
19 tranquility of the neighborhood.
20 MEMBER JONES: Okay. In terms of
21 do you feel as though the operation of this
22 establishment has contributed -- well, tell me

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1 how you feel as though the operation of this
2 establishment has contributed to the parking
3 situation or the general traffic flow in your
4 neighborhood, concisely.
5 MR. ZYBACH: I don't see that it
6 has had any impact.
7 MEMBER JONES: Okay. And you
8 mentioned property values.
9 MR. ZYBACH: Yes.
10 MEMBER JONES: And there was some
11 discussion about that. I just want to make
12 sure I'm clear. Tell me how you feel as
13 though the specific operation of this
14 establishment has impacted your property
15 value? And it could be has increased it,
16 decreased it, or no effect at all.
17 MR. ZYBACH: Businesses like
18 Hank's and Komi's and Sushi Taro have raised
19 the value of my property.
20 MEMBER JONES: Okay. Now, in all
21 of that if the operating hours of this
22 establishment were expanded, do you feel as

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1 though that would have a positive effect,
2 negative effect or no effect at all on all of
3 those issues that I just asked you a question
4 about?
5 MR. ZYBACH: I'm not well enough
6 versed to know whether they would -- what kind
7 of impact they would have on the economic
8 value or property values.
9 MEMBER JONES: Okay. So, that's
10 one. You don't know about that one. What
11 about peace, order and quiet?
12 MR. ZYBACH: I think that it would
13 have a positive impact.
14 MEMBER JONES: Okay. And traffic
15 and parking?
16 MR. ZYBACH: I don't think that it
17 would have impact whatsoever.
18 MEMBER JONES: Okay. Thanks.
21 sir.
22 Mr. Kline, any more --

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1 MR. KLINE: Yes, just a little
2 redirect.
4 MR. KLINE: Mr. Zybach, you were
5 asked whether the other establishments that
6 are open until or serve until 2:00 and 3:00,
7 whether they're louder during those later
8 hours, and you responded that they were. Is
9 that correct?
10 MR. ZYBACH: Yes.
11 MR. KLINE: All right. Are those
12 establishments different from this
13 establishment?
14 MR. ZYBACH: They are.
15 MR. KLINE: How so?
16 MR. ZYBACH: Again, they're bars.
17 The 17th Street corridor is known as a place
18 for people to come and party late at night.
19 And we only have one place on the street where
20 people actually come to eat and converse, and
21 that's really Annie's. The other places shift
22 from serving food to really being more of a

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1 bar kind of environment. And so, having
2 Hank's open late would I think provide more of
3 a destination for people who aren't just
4 coming out to party. I think we need more of
5 a mix in the neighborhood for that.
6 MR. KLINE: Right. So just so I'm
7 clear, do you have an opinion today as to if
8 Hank's were allowed to stay open later or
9 serve later until 2:00 and 3:00, whether
10 people would be louder or that would in any
11 have an adverse impact on the neighborhood?
12 MR. ZYBACH: Again, as I
13 mentioned, I think Hank's to some degree has
14 a calming effect in the neighborhood. I don't
15 think it would be louder. There would be
16 people who would be coming in there, but
17 they're not a dance crowd. And people come to
18 the neighborhood to dance and party, and it's
19 not that kind of a crowd. And we need places
20 in our neighborhood where we can go and just
21 sit and have chat and late night snacks and
22 drinks.

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1 MR. KLINE: Right. Thank you. I
2 don't have any further questions.
3 CHAIRMAN BRODSKY: Mr. Hibey, any
4 additional recross?
5 MR. HIBEY: I want to follow up on
6 a question one of the Board Members asked.
7 You said that if Hank's stayed open later it
8 would have a positive effect on the peace,
9 order and quiet in the neighborhood.
10 MR. ZYBACH: Yes.
11 MR. HIBEY: How would Hank's
12 staying open later have a positive impact on
13 the quiet in the neighborhood?
14 MR. ZYBACH: So, right now there's
15 nothing -- you've got the Java House and
16 you've got Hank's across from each other.
17 People come and hang out there because there's
18 nothing open. And to me, having an
19 establishment open that is civil will
20 discourage people from just coming and hanging
21 out on Q Street, as opposed to 17th. They're
22 already hanging out on 17th until the other

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1 places close.
2 MR. HIBEY: So, your response is
3 to open a bar until 3:00 a.m.?
4 MR. ZYBACH: This is not a bar.
5 CHAIRMAN BRODSKY: Mr. Hibey, your
6 question was asked and answered. Do you have
7 a different question you'd like to follow up
8 with?
9 MR. HIBEY: No, I'm done.
11 Thank you very much.
12 Sir, thank you for your time here
13 today. We really appreciate it.
14 Mr. Kline, your next witness?
15 MR. KLINE: Yes, thank you. I
16 call to the stand Jamie Leeds.
17 CHAIRMAN BRODSKY: Hello.
18 MS. LEEDS: Hi.
20 right hand for me. Do you affirm the
21 testimony you give is the truth, the whole
22 truth, nothing but the truth?

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1 MS. LEEDS: Yes, I do.
2 CHAIRMAN BRODSKY: Thank you so
3 much.
4 MR. KLINE: State your name and
5 address for the record, please.
6 MS. LEEDS: Jamie Leeds, 5307 14th
7 Street, Washington, D.C., 20011.
8 MR. KLINE: And what's your
9 connection with Hank's Oyster Bar?
10 MS. LEEDS: I'm the chef/owner.
11 MR. KLINE: And how long have you
12 been the chef/owner?
13 MS. LEEDS: Since 2005, May.
14 MR. KLINE: And what did you do
15 before you were the chef/owner there?
16 MS. LEEDS: I was the chef of a
17 restaurant called 15 Ria, which was in the
18 Washington Terrace Hotel.
19 MR. KLINE: Okay. Are you
20 involved in other licensed establishments in
21 the District of Columbia?
22 MS. LEEDS: In the District? Yes,

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1 I'm also an owner of CommonWealth Gastropub,
2 which is a restaurant on Irving Street in
3 Columbia Heights.
4 MR. KLINE: Okay. And do you have
5 restaurants elsewhere in the Metropolitan
6 area?
7 MS. LEEDS: I have a second Hank's
8 Oyster Bar in Old Town, Virginia.
9 MR. KLINE: Who's Hank?
10 MS. LEEDS: Hank was my dad.
11 MR. KLINE: Okay. And tell the
12 Board what kind of place this is.
13 MS. LEEDS: Hank's is a casual
14 neighborhood restaurant, seafood, kind of New
15 England-y beach-y style. We have oysters from
16 around the world and we have a variety -- I
17 change the menu daily and I print the menu in-
18 house so the menu is -- I source all the fish
19 mostly locally and sustainable. And it's just
20 a very fun convivial kind of place.
21 MR. KLINE: Okay. In terms of the
22 layout in the establishment, is there a bar in

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1 the establishment?
2 MS. LEEDS: There's a very small
3 bar. It's a five-seat bar. And then there's
4 an ice bar where we shuck the oysters and do
5 the shrimp.
6 MR. KLINE: Now, at the ice bar is
7 there a bartender back there slinging drinks?
8 MS. LEEDS: There's a shucker and
9 he's very busy. And then there's a bartender.
10 MR. KLINE: Okay. So, people go
11 there mostly to dine, is that correct?
12 MS. LEEDS: Yes.
13 MR. KLINE: Is there a way that
14 someone could come in there and just drink on
15 a regular basis?
16 MS. LEEDS: Not really, no,
17 because we have -- people just don't do that.
18 It's not that type of establishment.
19 MR. KLINE: Now you have a
20 sidewalk caf‚ as well, correct?
21 MS. LEEDS: Yes, 20 seats.
22 MR. KLINE: Twenty seats. And how

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1 many seats in the interior?
2 MS. LEEDS: The interior is about
3 50.
4 MR. KLINE: All right. You're
5 there during operations, not all the time, but
6 on occasion, correct?
7 MS. LEEDS: Yes.
8 MR. KLINE: Have you ever had any
9 complaints concerning the operation of the
10 establishment?
11 MS. LEEDS: We've never had any
12 complaints.
13 MR. KLINE: No one's ever
14 complained about noise?
15 MS. LEEDS: We never get any
16 calls, no.
17 MR. KLINE: Now in terms of
18 parking, where do your patrons park?
19 MS. LEEDS: We recommend the lot
20 on P Street if you're driving in, but you
21 know, we have a lot of local neighborhood
22 people that come in that walk or take the

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1 Metro.
2 MR. KLINE: Okay.
3 MS. LEEDS: Which is just a couple
4 blocks away, but --
5 MR. KLINE: Did you -- I'm sorry.
6 Go ahead.
7 MS. LEEDS: But the P Street lot
8 is what we recommend.
9 MR. KLINE: Okay. Did you at some
10 point offer valet parking?
11 MS. LEEDS: We did at the
12 beginning, we offered valet. And nobody
13 partook in it. I mean, it wasn't a successful
14 venture, so we decided not to do it anymore.
15 MR. KLINE: And do you know why
16 that is in terms of why people didn't
17 participate in the valet parking program?
18 MS. LEEDS: I'm not sure. Maybe
19 they didn't want to pay for parking.
20 MR. KLINE: Okay.
21 MS. LEEDS: I'm not really sure.
22 I was surprised, because I thought the valet

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1 -- you know, we were doing it to be able to
2 contribute to the community. I even thought
3 people that weren't actually coming to Hank's
4 would use the valet, but --
5 MR. KLINE: And where the cars
6 parked who took advantage of the valet
7 service?
8 MS. LEEDS: They have a lot
9 somewhere. I don't know exactly.
10 MR. KLINE: Okay.
11 MS. LEEDS: It was, you know, a
12 different business.
13 MR. KLINE: Okay. What do you do,
14 if anything, to control the noise in the
15 establishment?
16 MS. LEEDS: Well, it's never been
17 a problem, but you know, we can close the
18 front doors if we have to. But there's never
19 been an issue.
20 MR. KLINE: If you were allowed to
21 be open later and allowed to serve alcoholic
22 beverages later, do you anticipate that there

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1 would be a noise problem with the
2 establishment?
3 MS. LEEDS: No, I don't.
4 MR. KLINE: And why not?
5 MS. LEEDS: Just because of the
6 type of clientele that we have. It's a more
7 upscale, you know, a little bit older
8 clientele and people that, you know, aren't
9 kind of the rowdy partying type.
10 MR. KLINE: Now you've
11 entertained, and it's not exactly the subject
12 of this hearing, but just so that we're clear,
13 you've entertained expanding into the space
14 next door, is that correct?
15 MS. LEEDS: Yes.
16 MR. KLINE: And have you
17 negotiated what you believe might be a market
18 rent for the space next door?
19 MS. LEEDS: I believe. I believe
20 so.
21 MR. KLINE: All right. Based on
22 your experience and in terms of that

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1 experience, have you seen any change in the
2 rental rates for the neighborhood?
3 MS. LEEDS: Well, it's definitely
4 gone up.
5 MR. KLINE: Okay.
6 MS. LEEDS: My rent is going to be
7 higher for that space.
8 MR. KLINE: So if you expand in
9 the new space, then you'll be paying more rent
10 than five years ago, is that correct?
11 MS. LEEDS: Yes, per square foot.
12 MR. KLINE: All right. And
13 obviously your restaurant has operated in the
14 neighborhood for the last five years, correct?
15 MS. LEEDS: Yes.
16 MR. KLINE: Okay. Now, five years
17 ago you entered into a Voluntary Agreement, is
18 that correct?
19 MS. LEEDS: Yes.
20 MR. KLINE: Why did you do that?
21 MS. LEEDS: Because I wanted to
22 get open and I felt like I had to.

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1 MR. KLINE: Why didn't you just go
2 to hearing?
3 MS. LEEDS: There was no option to
4 go to hearing.
5 MR. KLINE: And why was that?
6 MS. LEEDS: They just kept saying,
7 you know, negotiate between the parties.
8 MR. KLINE: Okay. Now in terms of
9 the Voluntary Agreement, why is it that you
10 wish to be free of the Voluntary Agreement?
11 MS. LEEDS: Well, it's
12 restrictive, first of all. It limits my
13 seating and I want to be able to expand.
14 MR. KLINE: Okay.
15 MS. LEEDS: It restricts my hours
16 and it restricts when I can open the patio.
17 It's limiting all around.
18 MR. KLINE: All right.
19 MS. LEEDS: As an operator, as a
20 successful operator who can show a good record
21 and contribution to the neighborhood, I feel
22 like Voluntary Agreements are really for

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1 people that, you know, maybe wouldn't be as
2 good of operators as I am.
3 MR. KLINE: Let's say that you by
4 whatever process are allowed to make changes
5 to your establishment and you make those
6 changes, and you discover that there are
7 complaints about noise, what will you do?
8 MS. LEEDS: In my present
9 operation?
10 MR. KLINE: No, I'm saying if
11 you're allowed to make changes to your
12 establishment.
13 MS. LEEDS: My present operation?
14 MR. KLINE: Yes, to your present
15 operation, and there are complaints about
16 noise, what will you do? How would you react
17 to that?
18 MS. LEEDS: I would do everything
19 I can to reduce the noise.
20 MR. KLINE: Okay. Do you view
21 that as something that's your responsibility
22 as a business owner?

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1 MS. LEEDS: Yes, I mean, I think
2 it's important to be a good neighbor, and I've
3 always thought that.
4 MR. KLINE: All right. Now,
5 you've heard testimony today about a number of
6 establishments that are open later than you
7 are in the neighborhood, correct?
8 MS. LEEDS: Yes.
9 MR. KLINE: Where does your
10 establishment fall in terms of size relative
11 to those other establishments?
12 MS. LEEDS: Hank's is smaller than
13 all of the other establishments.
14 MR. KLINE: Than all of the other
15 establishments?
16 MS. LEEDS: Except Komi just
17 reduced -- well, Komi doesn't stay open, so I
18 guess that wouldn't be in the mix. Yes, it's
19 smaller.
20 MR. KLINE: So of the
21 establishments that remain open, can you
22 recount for the Board what those are again?

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1 We've heard testimony, but just so we're
2 clear. JR's is one?
3 MS. LEEDS: JR's, Fox and Hounds,
4 Agora, Annie's and Dupont Italian Kitchen.
5 MR. KLINE: And all of those
6 establishments are larger than Hank's Oyster
7 Bar?
8 MS. LEEDS: Yes.
9 MR. KLINE: Now having operated
10 this establishment for five years, you have a
11 sense of who your customers are, correct?
12 MS. LEEDS: Yes.
13 MR. KLINE: All right. Well, who
14 are they? Where do they come from?
15 MS. LEEDS: They come from all
16 over. We've really established ourselves as
17 a dining destination, which is, you know,
18 great, but we also have a very loyal local
19 clientele as well. So, it's a very diverse,
20 very diverse clientele.
21 MR. KLINE: Okay. I don't have
22 any further questions of the witness at this

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1 time.
4 Good afternoon. You stated that
5 you were forced to sign the Voluntary
6 Agreement in 2005, is that right?
7 MS. LEEDS: If I wanted to get
8 open and not spend any money, yes, any further
9 money.
10 MR. HIBEY: Okay. Are you saying
11 that the Board forced you to sign the
13 MS. LEEDS: They didn't physically
14 force me, no.
15 MR. HIBEY: So, you weren't forced
16 to sign the Voluntary Agreement?
17 MS. LEEDS: I was hypothetically
18 forced because I didn't want to spend any more
19 money, money that I didn't have, because I had
20 signed a lease which I was paying rent on and
21 I was hired and paying an attorney to fight
22 this battle that I really didn't think that I

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1 needed to fight.
2 MR. HIBEY: So you had an attorney
3 representing you back then in 2005?
4 MS. LEEDS: I didn't see any other
5 choice.
6 MR. HIBEY: Yes or no?
7 MS. LEEDS: Yes.
8 MR. HIBEY: And your attorney was
9 involved in the negotiations for that
10 Voluntary Agreement, right?
11 MS. LEEDS: That's right.
12 MR. HIBEY: And when you entered
13 into that Voluntary Agreement you understood
14 that the Voluntary Agreement became a part of
15 your license, is that right?
16 MS. LEEDS: Yes.
17 MR. HIBEY: Now the Voluntary
18 Agreement addresses a couple points of
19 operation of your business, right?
20 MS. LEEDS: Yes.
21 MR. HIBEY: And you currently
22 abide by the Voluntary Agreement, is that

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1 right?
2 MS. LEEDS: Yes.
3 MR. HIBEY: It's not impossible to
4 continue to abide by the Voluntary Agreement,
5 is it?
6 MS. LEEDS: What do you mean?
7 MR. HIBEY: Well, I mean, there
8 isn't anything in the Voluntary Agreement that
9 you currently cannot abide by today?
10 MS. LEEDS: Well, I'm abiding
11 about it.
12 MR. HIBEY: Right, but there's
13 nothing in the Voluntary Agreement that it's
14 impossible for you to somehow follow?
15 CHAIRMAN BRODSKY: What are you
16 getting at here, Mr. Hibey? I'm not so sure
17 what you're asking.
18 MS. LEEDS: Yes, what is the
19 point? I mean, I'm following it.
20 MR. HIBEY: Well, I'm just trying
21 to find out what part of the Voluntary
22 Agreement needs to be terminated.

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1 CHAIRMAN BRODSKY: Well, that's
2 not what you asked.
3 MR. KLINE: Objection to the
4 relevance.
5 CHAIRMAN BRODSKY: Yes, that's not
6 what you asked. You're asking her to answer
7 something I dont' think she can even answer,
8 so could you rephrase the question?
9 MR. HIBEY: Okay. I understand.
10 Have you analyzed the impact of
11 additional seats in your current location?
12 MS. LEEDS: No.
13 MR. HIBEY: Have you analyzed the
14 impact of additional hours at your location?
15 MS. LEEDS: No.
16 MR. HIBEY: I don't have any
17 questions.
19 any questions? We'll start off with you, Mr.
20 Nophlin.
21 MEMBER NOPHLIN: Thank you for
22 coming. And let me say that I read the

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1 report. You don't have any music in your
2 establishment, do you?
3 MS. LEEDS: No live music.
4 MEMBER NOPHLIN: Not live music?
5 Just --
6 MS. LEEDS: Ambient music.
7 MEMBER NOPHLIN: Ambient music?
8 Nothing amplified?
9 MS. LEEDS: No.
10 MEMBER NOPHLIN: Okay. Thank you.
11 That's all I have, Mr. Chair.
13 MEMBER BROOKS: Yes, how many
14 floors do you have?
15 MS. LEEDS: One floor.
16 MEMBER BROOKS: One floor? And
17 your outside dining, outside seating, how many
18 seats?
19 MS. LEEDS: Twenty.
20 MEMBER BROOKS: Twenty? And if
21 you expand it, what's the possibility of
22 additional seats outside?

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1 MS. LEEDS: An additional 20.
2 MEMBER BROOKS: So, a total of 40
3 outside?
4 MS. LEEDS: Yes.
5 MEMBER BROOKS: Okay. And how
6 many employees do you employ?
7 MS. LEEDS: Thirty-eight.
8 MEMBER BROOKS: Thirty-eight?
9 MS. LEEDS: Yes.
10 MEMBER BROOKS: Are most of them
11 D.C. residents?
12 MS. LEEDS: Most of them, yes.
13 Most of them live in the neighborhood.
14 MEMBER BROOKS: Right. Right.
15 MS. LEEDS: Yes.
16 MEMBER BROOKS: Okay. And the
17 amount of sales, what percentage is alcohol?
18 MS. LEEDS: It's about --
19 MEMBER BROOKS: Approximately.
20 Last year.
21 MS. LEEDS: Eighteen percent.
22 MEMBER BROOKS: Eighteen percent

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1 alcohol?
2 Okay. Thank you, Mr. Chairman.
4 Any other questions? Okay. Hang
5 on one second. Mr. Gandhi?
7 CHAIRMAN BRODSKY: All right, Mr.
8 Jones.
10 Chairman. I think the attorney for the
11 Protestant group asked you had you done any
12 analysis on the impact of additional hours and
13 additional seats.
14 MS. LEEDS: Yes.
15 MEMBER JONES: I think your
16 response to that was no.
17 MS. LEEDS: Correct.
18 MEMBER JONES: Can you in any way
19 quantify whether or not additional hours would
20 generate more revenue for you as a business?
21 And if so, give me a feel for what additional
22 revenue you'd be able to bring in if you were

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1 able to be open to the extent of the hours
2 that you would like.
3 MS. LEEDS: You know, I don't do
4 any market research and things like that. I'm
5 instinctual. I talk to my customers, I talk
6 to the neighbors, I talk to the people that
7 come in and, you know, they all -- you know,
8 they want me to stay open later and expand.
9 So, that's kind of what I go on.
10 MEMBER JONES: Okay.
11 MS. LEEDS: Is what my clientele
12 wants.
13 MEMBER JONES: Okay. So, you
14 don't have a good feel right now if you
15 expanded by 20 seats that you'd be able to, I
16 guess, generate enough revenue to offset the
17 costs associated with those additional seats
18 and the operating time, the cost of utilities
19 and your staff that you have to pay, etcetera?
20 It's just a gut feel that you have that you
21 want to expand?
22 MS. LEEDS: No, I mean, I'm sure

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1 that if I expanded 20 seats, an additional 20
2 seats that I would increase my revenue. I
3 mean, that's why I want to do it. I don't
4 know exactly. I haven't run the numbers. I
5 haven't done spreadsheets to know exactly what
6 it would do, but I'm sure it would cover the
7 utilities and the extra things that it would
8 need to stay open.
10 MS. LEEDS: Is that what you mean?
11 MEMBER JONES: Yes, I guess what
12 I'm trying to get at is one of the reasons why
13 you want to expand both hours and seats is it
14 will help better your ability to generate
15 revenue?
16 MS. LEEDS: Sure, that is one of
17 the reasons, yes.
18 MEMBER JONES: Cool. So from an
19 analysis standpoint you've at least done that
20 part of your analysis to know that you believe
21 that it will have a positive impact on your
22 revenue and that's one of the reasons why you

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1 want to do it?
2 MS. LEEDS: Yes.
3 MEMBER JONES: Okay. Thank you.
6 questions from the Board? Mr. Gandhi?
7 MEMBER GANDHI: Thank you.
8 How are you?
9 MS. LEEDS: I'm good.
10 MEMBER GANDHI: Good. As my
11 Chairman would say, thank you for doing
12 business in the District of Columbia.
13 MS. LEEDS: Sure.
14 MEMBER GANDHI: Really appreciate
15 it. I've never been to Hank's.
16 MS. LEEDS: Oh, you'll have to
17 come in.
18 MEMBER GANDHI: Because I'm a
19 vegetarian.
20 MS. LEEDS: We have tons of --
21 MEMBER GANDHI: I don't eat
22 oysters.

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1 MS. LEEDS: -- tons of vegetables
2 on the market.
3 MEMBER GANDHI: I think I had
4 oysters once actually in my life. But if I
5 wasn't, I'd be there.
6 Let's go through your VA.
7 MS. LEEDS: Okay.
8 MEMBER GANDHI: You know, because
9 what I'm really trying to figure out at the
10 end of the day is why you'd like to terminate
11 it.
12 MS. LEEDS: Yes.
13 MEMBER GANDHI: Is it the hours?
14 Is it the seating? Is it everything in there?
15 Is it you hate VAs? You know what I mean?
16 MS. LEEDS: Yes.
17 MEMBER GANDHI: I really need to
18 understand it. So the capacity I sort of
19 understand. You want to expand?
20 MS. LEEDS: Yes.
21 MEMBER GANDHI: Right? So, that
22 sort of makes sense that you don't want that

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1 in your VA.
2 MS. LEEDS: Yes.
3 MEMBER GANDHI: Interior hours,
4 according to your VA it says you can serve
5 food until 2:00 a.m. and 3:00 a.m., but you'd
6 like to --
7 MS. LEEDS: No. Oh, food? Yes.
8 MEMBER GANDHI: Food, yes.
9 MS. LEEDS: Food only.
11 MS. LEEDS: Yes.
12 MEMBER GANDHI: But you'd like to
13 serve alcohol as well?
14 MS. LEEDS: Yes.
15 MEMBER GANDHI: Until 2:00 and
16 3:00?
17 MS. LEEDS: I mean, you know, I
18 would like to have the option.
20 MS. LEEDS: Possibly do that.
21 MEMBER GANDHI: Do you currently
22 serve food until 2:00 and 3:00?

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1 MS. LEEDS: No.
2 MEMBER GANDHI: You don't? What
3 time do you close?
4 MS. LEEDS: Close at 10:00 during
5 the week and 11:00 on the weekends.
6 MEMBER GANDHI: Okay. And if
7 this --
8 MS. LEEDS: But we do a late night
9 Friday and Saturday. We do do a late night
10 oyster hour.
11 MEMBER GANDHI: Oyster hour?
12 MS. LEEDS: Yes, from 11:00 to
13 12:00.
14 MEMBER GANDHI: Okay. 11:00 to
15 12:00? And there's alcohol as well?
16 MS. LEEDS: Yes, inside.
17 MEMBER GANDHI: Until 12:00?
18 Okay. And do you have a bar area there?
19 MS. LEEDS: Yes, it's a very small
20 six-seat bar.
21 MEMBER GANDHI: Six-seat bar? And
22 then mostly tables?

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1 MS. LEEDS: Yes, it's all tables.
2 MEMBER GANDHI: Okay. So if you
3 didn't have this clause in your VA, do you
4 expect that people would be coming there to
5 drink or to eat and also maybe have a drink
6 along with it?
7 MS. LEEDS: Mostly to eat and to
8 have a drink, a glass of wine.
9 MEMBER GANDHI: Okay. So you are
10 a CR?
11 MS. LEEDS: Yes.
12 MEMBER GANDHI: And you're not
13 going to be changing into -- you're not
14 applying to change or anything like that? You
15 want to stay as a restaurant, correct?
16 MS. LEEDS: That's right.
17 MEMBER GANDHI: Great. Your
18 outdoor sidewalk caf‚ hours currently restrict
19 you, I believe they restrict your hours and
20 they restrict the days that you can be open,
21 is that right?
22 MS. LEEDS: No.

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1 MEMBER GANDHI: It's just the
2 hours?
3 MS. LEEDS: Just the hours.
4 MEMBER GANDHI: Okay. 11:00 p.m.
5 Sunday through Thursday and midnight Friday
6 and Saturday?
7 MS. LEEDS: Yes.
8 MEMBER GANDHI: Okay. Would you
9 want to be open after that on your outdoor
10 caf‚?
11 MS. LEEDS: Outside, you know,
12 possibly.
13 MEMBER GANDHI: Yes?
14 MS. LEEDS: As an option.
15 MEMBER GANDHI: So if you had the
16 option, would you?
17 MS. LEEDS: I don't know. It
18 depends on, you know, what the market would
19 bear.
20 MEMBER GANDHI: Okay. It talks
21 about last call. Do you currently do that?
22 MS. LEEDS: Yes, we do. Yes,

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1 we're very careful about making sure people
2 get off the patio time.
3 MEMBER GANDHI: Got it. You close
4 your doors and windows at 9:00?
5 MS. LEEDS: Yes.
6 MEMBER GANDHI: Would you change
7 that? I'm curious.
8 MS. LEEDS: Would I --
9 MEMBER GANDHI: The VA currently
10 says that you will close all windows to the
11 establishment promptly at 9:00. Do you do
12 that?
13 MS. LEEDS: Yes.
14 MEMBER GANDHI: I mean, would you
15 continue to do that if there was no VA?
16 MS. LEEDS: Yes, if I had to.
17 MEMBER GANDHI: No, I'm asking if
18 you didn't have to, if there was no VA?
19 MS. LEEDS: Oh, if I didn't have
20 to?
22 MS. LEEDS: You know, it depends

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1 on what people want, you know. The clients
2 sometimes they want to have the door open.
3 They like to sit with the door open.
4 Sometimes they don't. You know, it just
5 depends on, you know, what the customer -- the
6 customer dictates what I do.
7 MEMBER GANDHI: And how many
8 people do you usually have there around 11:00
9 or midnight?
10 MS. LEEDS: It really dies down.
11 It's very quiet. I mean, we're closing up, so
12 maybe there will be 15 or so people there.
13 MEMBER GANDHI: And your neighbor
14 is open until what time again?
15 MS. LEEDS: On the other side of
16 me? Well, it's around the corner. He's open
17 to 2:00 during the week and 3:00 --
18 MEMBER GANDHI: How about what's
19 next to you? What's right next to you?
20 MS. LEEDS: Right next to me is
21 Trio.
22 MEMBER GANDHI: Right. What time

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1 are they open until?
2 MS. LEEDS: It's a side caf‚.
3 2:00 and 3:00 are their hours, I'm pretty
4 sure.
5 MEMBER GANDHI: Okay. And how
6 about --
7 MS. LEEDS: They don't really see
8 anybody.
9 MEMBER GANDHI: What's on the
10 other side?
11 MS. LEEDS: And around the corner
12 is Fox and Hounds.
13 MEMBER GANDHI: What's Fox and
14 Hounds, do you know?
15 MS. LEEDS: That's a bar.
16 MEMBER GANDHI: Okay. That's a CT
17 you think? Is it a tavern, do you know?
18 MS. LEEDS: I'm not sure what kind
19 of license he has.
20 MEMBER GANDHI: All right. So,
21 then it talks about nightly outside chair
22 storage. I mean, has that ever been an issue?

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1 MS. LEEDS: No, we've never gotten
2 complaints. We lock everything up and clean
3 everything really well.
4 MEMBER GANDHI: Your VA talks
5 about loitering, trash removal and outside
6 maintenance. Has that ever been an issue?
7 MS. LEEDS: No, we have a trash
8 company that, you know, comes every day and
9 picks up the trash.
10 MEMBER GANDHI: All right. It
11 talks about consideration of the neighborhood.
12 It talks about noise, music and dancing. No
13 outdoor music live or taped shall be heard or
14 played in the outdoor caf‚. If this didn't
15 exist, how would you change your operations of
16 the establishment?
17 MS. LEEDS: If I didn't have the
18 VA?
19 MEMBER GANDHI: If you didn't have
20 -- again, we're going through it.
21 MS. LEEDS: Oh, I'm sorry. With
22 the music and --

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1 MEMBER GANDHI: Yes, so we're
2 talking about specifically No. 8, no outdoor
3 music live or shape shall be --
4 MS. LEEDS: I wouldn't change
5 anything. I wouldn't have outdoor music. I'm
6 not that kind of -- I'm a chef. You know, I'm
7 a food person, right? My establishment is
8 about food. So, it's not about, you know,
9 music and dancing, that kind of stuff.
10 MEMBER GANDHI: Okay. And then it
11 talks about sidewalk caf‚ usage provisions.
12 Yes, it does say shall be operated from April
13 1 to November 30th.
14 MS. LEEDS: Yes, that's another
15 thing. That would be --
16 MEMBER GANDHI: And I know that
17 Member Alberti asked that question already, so
18 we'll skip that.
19 MS. LEEDS: Yes, it would be nice
20 to be able to open in May, because it does get
21 warm.
22 MEMBER GANDHI: And then it talks

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1 about umbrellas. You can only have Hank's on
2 it.
3 MS. LEEDS: Yes, I have an issue
4 with that. That I think is ridiculous. So,
5 on the record --
6 MEMBER GANDHI: Yes, what if she
7 wanted my name on it? Gandhi's?
8 CHAIRMAN BRODSKY: It would be a
9 violation of her VA.
10 MEMBER ALBERTI: That would be a
11 conflict of --
12 MEMBER GANDHI: Wait a minute now.
13 CHAIRMAN BRODSKY: Unless you
14 called it Mital's Oyster Bar.
15 MEMBER GANDHI: I can never buy a
16 oyster bar.
17 Ever have any issues, ever had any
18 ABRA violations at Hank's?
19 MS. LEEDS: No.
20 MEMBER GANDHI: Never?
21 MS. LEEDS: No.
22 MEMBER GANDHI: You've never been

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1 cited for anything, ever been --
2 MS. LEEDS: There was one time
3 when my manager didn't have her license, but
4 that's -- I think there was only incidence of
5 that.
6 MEMBER GANDHI: And how about any
7 of your other establishments in the District?
8 MS. LEEDS: No. CommonWealth did
9 have something. Oh, CommonWealth had a
10 violation when we first opened. It was
11 something about the hours.
12 MEMBER GANDHI: What was it, do
13 you remember?
14 MS. LEEDS: I think maybe we were
15 open later than we were supposed to be.
16 MEMBER GANDHI: Okay. But nothing
17 at this location?
18 MS. LEEDS: No.
19 MEMBER GANDHI: Great. Hey
20 listen, thanks a lot.
21 MS. LEEDS: Okay.
22 MEMBER GANDHI: I really

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1 appreciate it.
2 MS. LEEDS: Thank you.
3 MEMBER GANDHI: Hold on one
4 second.
5 Thank you, Mr. Chair.
8 Chairman.
9 I just had a follow-up question
10 regarding Board Member Gandhi's question as it
11 related to -- I guess one of the stipulations
12 in there, I think it was about the doors being
13 open.
14 MS. LEEDS: Yes.
15 MEMBER JONES: And you made a
16 comment or statement that your customers
17 dictate what you do.
18 MS. LEEDS: Yes.
19 MEMBER JONES: And I want to make
20 sure I'm clear on what you're really saying
21 there.
22 MS. LEEDS: Yes.

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1 MEMBER JONES: So if for example
2 you got a complaint from the community, you
3 don't have a VA, you get a complaint from the
4 community about noise and they're attributing
5 it to the doors being open, would in that
6 instance only what the customers want dictate
7 what you do, or would you take other factors
8 into consideration?
9 MS. LEEDS: No, I would take other
10 factors into consideration.
11 MEMBER JONES: Okay. Would that
12 apply not just to the doors being open, but in
13 general?
14 MS. LEEDS: Sure. Yes,
15 definitely. Sure.
16 MEMBER JONES: Okay. Because I
17 want to make sure I'm clear, because my
18 understanding is that you've been a very good
19 operator. But someone could argue that you've
20 been a good operator because you've had this
21 VA in place and you've had to be.
22 MS. LEEDS: Yes.

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1 MEMBER JONES: Without the VA in
2 place will you continue to be a good operator?
3 MS. LEEDS: Yes.
4 MEMBER JONES: So just trying to
5 make sure I'm clear on your comment about the
6 customers dictating. I don't think you meant
7 that the way I interpreted it, so I wanted to
8 make sure I was clear in how you meant it.
9 MS. LEEDS: Yes.
10 MEMBER JONES: Thank you.
13 Mr. Kline?
14 MR. KLINE: Mr. Jones covered my
15 follow up. Thank you.
17 MR. HIBEY: When we were walking
18 through the Voluntary Agreement it was pointed
19 out that there was (off microphone.) You
20 stated earlier that you have 15 seats inside,
21 is that right?
22 MS. LEEDS: Yes.

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1 MR. HIBEY: And the Voluntary
2 Agreement allows you to have 65 seats inside.
3 Do you know that?
4 MS. LEEDS: Okay.
5 MR. HIBEY: So, you're not using
6 all of the seats that you could be using under
7 the Voluntary Agreement, right?
8 MS. LEEDS: Well, I don't want to
9 cram everybody in the way -- you know --
10 MR. HIBEY: Okay. So if the
11 Voluntary Agreement --
12 MS. LEEDS: -- I have as many
13 seats as I think I should have given the
14 comfort of the guests.
15 MR. HIBEY: So, the Voluntary
16 Agreement provision on seats doesn't restrict
17 you at all?
18 MS. LEEDS: Well, it's only 10
19 seats and no, it doesn't restrict me in that
20 particular space.
21 MR. HIBEY: Okay. And you also
22 said that your kitchen closes at 10:00 on week

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1 nights and 11:00 on the weekends, right?
2 MS. LEEDS: Yes.
3 MR. HIBEY: But the Voluntary
4 Agreement allows you to keep the kitchen open
5 much later than that, right?
6 MS. LEEDS: An hour later, yes.
7 MR. HIBEY: So the Voluntary
8 Agreement again doesn't restrict your hours to
9 keep the kitchen open?
10 MS. LEEDS: No, not as it stands.
11 That's right.
12 MR. HIBEY: And just to clarify,
13 your outdoor time -- you're allowed to be
14 open, the sidewalk caf‚, from April 1 to
15 November 30th. Those are the dates, right?
16 MS. LEEDS: Yes.
17 MR. HIBEY: All right. When we
18 walked through the Voluntary Agreement you
19 stated that you didn't have a problem with a
20 number of the provisions, is that right?
21 MS. LEEDS: What do you mean?
22 MR. HIBEY: Well, that if they

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1 weren't there you still wouldn't do what those
2 provisions prohibit.
3 MS. LEEDS: Most likely, that's
4 right.
5 MR. HIBEY: Did you ever attempt
6 to negotiate an amendment with anyone on this
8 MS. LEEDS: Oh, we attempted to
9 have a meeting, yes. And we did have a
10 meeting with Robin and the ANC commissioners.
11 MR. HIBEY: Did you attempt to
12 negotiate an amendment though?
13 MR. KLINE: Objection as to
14 relevance.
15 MS. LEEDS: Well, you already know
16 the answer to that.
17 CHAIRMAN BRODSKY: What makes it
18 irrelevant?
19 MR. KLINE: The Board has ruled
20 that that's not what we're here to talk about
21 in terms of efforts to amend. Why is that
22 relevant to whether this establishment with or

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1 without the Voluntary Agreement would
2 adversely impact the appropriateness criteria?
3 CHAIRMAN BRODSKY: Mr. Hibey, what
4 do you think about that?
5 MR. HIBEY: I didn't hear his --
6 CHAIRMAN BRODSKY: Objected on
7 relevance.
8 MR. HIBEY: I think it's relevant.
9 I think (A), (B) and (C) must be met. And I
10 don't know if the Board has fully decided that
11 issue or not. You told me this is only about
12 (C), but --
13 CHAIRMAN BRODSKY: We're pretty
14 certain, Mr. Hibey. I'd let you know if we
15 weren't, trust me. We're pretty certain. So,
16 he just objected to your question based on
17 relevance. So do you have a reason why I
18 shouldn't accept his objection and ask you to
19 go to the next question, something I can hang
20 my hat on?
21 MR. HIBEY: The question is
22 irrelevant.

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1 CHAIRMAN BRODSKY: Okay. So can
2 you ask your next question, please?
3 MR. HIBEY: Yes.
5 MR. HIBEY: If the Voluntary
6 Agreement is terminated are you saying that
7 you're not going to operate your business in
8 any way different?
9 MS. LEEDS: It's possible that I
10 won't.
11 MR. HIBEY: Okay. That's it.
12 Thank you.
13 CHAIRMAN BRODSKY: I have a couple
14 questions for you.
15 Thank you, Mr. Hibey.
16 I have a couple questions for you,
17 ma'am, if I could. Well, maybe just one or
18 two. So, currently you have a capacity for 65
19 inside, right, and 20 outside?
20 MS. LEEDS: Yes.
21 CHAIRMAN BRODSKY: So, and I'm
22 sorry I don't know the buildings that you're

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1 in or sort of the size of them, but I assume,
2 it sounds to me like you'd like the option to
3 make your business bigger, right? Things are
4 good and people like your food, so you want to
5 expand?
6 MS. LEEDS: Yes.
7 CHAIRMAN BRODSKY: That's
8 admirable and that's good, because that means
9 your 38 employees will hopefully go to 60
10 employees or whatever it is, right? It's good
11 for the District, good for sales tax.
12 MS. LEEDS: Yes.
13 CHAIRMAN BRODSKY: So from your
14 some-odd 65 seats, you have an idea of what
15 you'd like to grow into? You want to open up
16 600 seats?
17 MS. LEEDS: No.
18 CHAIRMAN BRODSKY: Four-hundred?
19 MS. LEEDS: Definitely not.
20 CHAIRMAN BRODSKY: Two-hundred-
21 and-eighty? Like kind of where do you want to
22 be?

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1 MS. LEEDS: Well, I'd like to be
2 -- you know, to get another 40 seats. That's
3 probably what I'll do next door.
5 MS. LEEDS: And then the 20
6 outside. But also what I'm going to be doing
7 is have a private dining room, which is
8 something that is -- a lot of my guests have
9 asked for private parties, you know, for 20-25
10 people.
12 MS. LEEDS: And I'm not able to
13 give that because of the limitation of my
14 space.
15 CHAIRMAN BRODSKY: Do you have any
16 idea how many seats there are at Lauriol Plaza
17 on 18th Street?
18 MS. LEEDS: I think there's like
19 300.
20 CHAIRMAN BRODSKY: You have any
21 desire to get that big?
22 MS. LEEDS: No.

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1 CHAIRMAN BRODSKY: Do you know
2 that you are compared to Lauriol Plaza for the
3 potential damage that you could do?
4 MS. LEEDS: Yes, I realize that.
6 desire to serve Mexican food?
7 MS. LEEDS: I do not.
9 desire to be a 300-seat restaurant with a
10 rooftop terrace?
11 MS. LEEDS: I do not.
12 CHAIRMAN BRODSKY: I wonder why
13 they compared you to Lauriol Plaza?
14 MS. LEEDS: I wonder myself.
15 CHAIRMAN BRODSKY: Was that just
16 sensationalism? I'm trying to figure out
17 where it comes from. Like why didn't they
18 compare to something with 120 seats if that's
19 what you want to grow into?
20 MS. LEEDS: I don't know.
21 CHAIRMAN BRODSKY: Any idea?
22 Believe me, I'm going to ask them when they

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1 get on the witness stand. They'll have their
2 chance.
3 Okay. That's it. Board Members?
4 Mr. Alberti?
5 MEMBER ALBERTI: This was probably
6 answered, but you know, you talked about
7 expanding and having a private -- but my
8 question actually was going to you, have you
9 ever wished at any point that you could stay
10 open later, like you had some private group
11 that wanted to come in and rent your
12 restaurant or rent space? I mean, has there
13 ever been that opportunity, or have you ever
14 dreamed of doing that and wish you could do
15 it?
16 MS. LEEDS: I never had anybody
17 ask to stay later than I'm allowed to stay
18 open.
20 MS. LEEDS: No.
21 MEMBER ALBERTI: Do you have the
22 hopes that you could do that?

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1 MS. LEEDS: I mean, you know --
2 MEMBER ALBERTI: I mean, where is
3 your business plan in terms of doing that --
4 MS. LEEDS: I don't know if
5 there --
6 MEMBER ALBERTI: -- and your
7 desires and vision.
8 MS. LEEDS: You know, there's been
9 a lot of -- a lot of businesses are going on
10 14th Street. You know, there's a lot more
11 restaurants on 14th Street in the past year.
12 They all stay open late and it's kind of -- i
13 think it's taking away some of the business
14 from the 17th Street corridor. And I'd like
15 to capture some of that business. I'd like to
16 give our local neighbors the option to have,
17 you know, a nice place to go to have a drink
18 late at night. So, you know, possibly -- you
19 know, like I said, if the market could bear
20 it, I would do it, if there was the
21 possibility.
22 MEMBER ALBERTI: Thank you.

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1 CHAIRMAN BRODSKY: Mr. Kline,
2 anything?
3 MR. KLINE: Ms. Leeds, if your
4 Voluntary Agreement is terminated, is that in
5 any way going to change how you react to the
6 neighborhood if there are issues raised with
7 your operation?
8 MS. LEEDS: No.
9 MR. KLINE: That's the only
10 question I have. Thank you.
12 MR. HIBEY: No further questions.
14 much, ma'am.
15 MS. LEEDS: Thank you.
16 CHAIRMAN BRODSKY: We appreciate
17 it.
18 MR. KLINE: Mr. Chairman, the only
19 other things we have is we would tender and
20 ask the Board to take administrative notice of
21 a proceeding before the Board that occurred on
22 Wednesday, March 30th, 2005 in connection with

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1 the initial application and approval of this
2 license.
3 CHAIRMAN BRODSKY: Mr. Hibey, do
4 you have any objection?
5 MR. HIBEY: Yes. I don't know
6 what this is.
7 MR. KLINE: It's a transcript of
8 one of the initial proceedings related to the
9 application and issuance of this license.
10 MR. HIBEY: What does it have to
11 do with this?
12 MR. KLINE: This has to do with
13 the questions you asked about whether Ms.
14 Leeds was forced to sign a Voluntary
15 Agreement.
16 MR. ZYBACH: Can you tell me
17 where?
18 MR. KLINE: Yes, I can tell you
19 that it is principally pages 16 through 25.
20 CHAIRMAN BRODSKY: Let's not burn
21 a lot of time, because it's part of --
22 MR. HIBEY: Yes, and I object. I

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1 don't know what this is or how it's --
2 CHAIRMAN BRODSKY: We'll just take
3 it --
4 MR. KLINE: All right. And the
5 other thing is that I would request that the
6 Board take administrative notice of the fact
7 that this establishment is in a C-2-B Zoning
8 District and the provisions of Section 720 of
9 the Zoning Regulations concerning community
10 business center districts and Section 721
11 concerning uses as a matter of right in a C-2
12 Zone District.
13 CHAIRMAN BRODSKY: Why would we
14 take administrative notice of that, Mr. Kline?
15 MR. KLINE: Because it's the law
16 of the District of Columbia and we're talking
17 about appropriateness and what's appropriate
18 certainly relates to what's permissible under
19 the Zoning Regulations, such as bowling alleys
20 and catering establishments.
21 CHAIRMAN BRODSKY: But isn't it
22 sort of a forgone conclusion? Like they

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1 couldn't get a license from DCRA to operate a
2 business in that they weren't zoned for it.
3 MR. KLINE: True.
4 CHAIRMAN BRODSKY: I'm just not
5 sure why --
6 MR. KLINE: True, but there are
7 different zoning classifications, as this
8 Board knows. Under limited circumstances they
9 might be able to get a license in a
10 residential zone. They might be able to get
11 a license in a C-1 Zone.
13 MR. KLINE: The C-2 Zone, in terms
14 of what's permitted there, I think lends to
15 the record the character of the neighborhood,
16 what types of establishments are permitted.
17 CHAIRMAN BRODSKY: Oh, understood.
18 Okay. So noted.
19 MR. KLINE: And I think it puts it
20 in context.
21 CHAIRMAN BRODSKY: Yes. Thank
22 you, Mr. Kline.

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1 MR. KLINE: Thank you.
2 CHAIRMAN BRODSKY: So noted. I
3 appreciate that. I appreciate that.
4 Your first witness, Mr. Hibey?
5 MR. ZYBACH: Before we get to our
6 first witness, I'd just like to put on record
7 and make a motion that the petition at this
8 point be dismissed. There is no evidence the
9 Board could find that the termination will not
10 have an adverse impact. The first two
11 witnesses, neither one of them have seen the
12 Voluntary Agreement, so their testimony has
13 nothing to do with whether or not the
15 have an adverse impact. The last witness has
16 now testified that she doesn't know what the
17 impact of increasing hours or increasing
18 patrons or capacity -- she doesn't know what
19 that impact would be. So, you have no
20 evidence to find that termination will not
21 have an adverse impact.

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1 Your motion's been denied. We appreciate it,
2 but it's on the record.
4 CHAIRMAN BRODSKY: Your first
5 witness?
6 MR. HIBEY: I think our first
7 witness is Jim McGrath.
9 MR. McGRATH: Hello.
10 CHAIRMAN BRODSKY: Hello. Do you
11 affirm that the testimony you'll give is the
12 truth, the whole truth and nothing but the
13 truth?
14 MR. McGRATH: I do.
16 Please be seated.
17 Your witness, Mr. Hibey.
18 MR. HIBEY: Good afternoon, Mr.
19 McGrath. Please state your name for the
20 record.
21 MR. McGRATH: Good afternoon. My
22 name is Jim McGrath.

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1 MR. HIBEY: Where do you live?
2 MR. McGRATH: I live at 1701
3 Massachusetts Avenue, Northwest.
4 MR. HIBEY: How long have you
5 lived there?
6 MR. McGRATH: Thirty-five years.
7 MR. HIBEY: And if you could
8 briefly tell the Board about your involvement
9 in the community.
10 MR. McGRATH: Yes. I happen to
11 head an organization called TENAC, which is
12 the D.C. Tenant's Advocacy Coalition. We
13 represent all who live in rental housing in
14 the city. We lobby for affordable housing.
15 We have a hotline for complaints,
16 landlord/tenant complaints. We work on
17 homelessness issues related to evictees and
18 also the homeless issue in general. And we
19 strongly support the shelter program in the
20 city.
21 MR. HIBEY: Thank you. Do you
22 know Hank's Oyster Bar?

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1 MR. McGRATH: I know of it. And I
2 would beg the indulgence if I could make one
3 comment on my impression of something which I
4 consider to be very important.
5 MR. HIBEY: Go ahead.
6 MR. McGRATH: I have been in this
7 community for a very long time. I know it
8 exceedingly well, especially the area where
9 the Licensee is located and all the adjacent
10 businesses and bars around it. And I take
11 great exception to the terms "forced" and
12 "singled out" for adverse attention. My
13 organization has overwhelming supported
14 Voluntary Agreements and we did so because we
15 viewed the abuses that were taking place --
16 MR. KLINE: Excuse me.
17 MR. McGRATH: -- on the bars in
18 that strip.
19 MR. KLINE: I have objection to
20 this.
21 CHAIRMAN BRODSKY: It's well
22 noted, Mr. Kline. I was letting it go for a

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1 little bit, but it's kind of -- yes, I was
2 giving you a little bit of leeway, but I got
3 to ask you to rein him in. Thank you so much.
4 MR. McGRATH: I'm easily reined
5 in, Chairman.
6 CHAIRMAN BRODSKY: No problem. I
7 was letting you go.
8 MR. HIBEY: Well, did you bring a
9 statement that you wrote with you today?
10 MR. McGRATH: I did. We prepared
11 a statement pursuant to a request that we
12 would appear in support of Voluntary
13 Agreements.
14 MR. KLINE: Mr. Chairman, I would
15 object. This hearing is not about the
16 advisability or the desirability of Voluntary
17 Agreements. This hearing is about whether the
18 Voluntary Agreement for Hank's Oyster Bar
19 should be terminated. And certainly this
20 might be a nice statement to read at the
21 Council, but I don't think it has any
22 relevance here today.

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2 MR. HIBEY: It is relevant because
3 it has to do with the effect of termination of
4 a Voluntary Agreement on a neighborhood, and
5 that's what it addresses.
6 CHAIRMAN BRODSKY: What do you
7 think about that, Mr. Kline?
8 MR. KLINE: I'm looking at it and
9 it looks to be, as Mr. McGrath I think
10 accurately stated, a statement about Voluntary
11 Agreements in general, not related to this
12 establishment. I think, you know, in relevant
13 part Mr. McGrath says he has nothing against
14 Hank's Oyster Bar and he understands they
15 serve good food.
16 CHAIRMAN BRODSKY: Mr. Hibey, if
17 your witness would like to testify about this
18 particular establishment's Voluntary Agreement
19 and the effect or non-effect of terminating
20 this particular agreement, I'll all good with
21 that.
22 MR. HIBEY: Okay.

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1 CHAIRMAN BRODSKY: So, if you
2 could keep --
3 MR. HIBEY: That's where we'll go.
4 CHAIRMAN BRODSKY: -- focused on
5 that --
6 MR. HIBEY: Can the statement come
7 in or --
8 MR. KLINE: Object on the grounds
9 of relevance.
10 MR. HIBEY: I didn't write it. I
11 haven't even seen it. I want to put it in
12 front of --
13 CHAIRMAN BRODSKY: Very few people
14 leave me speechless. Ask these guys.
15 MR. HIBEY: It's his statement.
16 He wants to Board to see it.
17 CHAIRMAN BRODSKY: We will take --
18 MR. HIBEY: It's not even mine.
19 CHAIRMAN BRODSKY: We can take
20 administrative notice of his statement.
21 MR. McGRATH: I have a copy for
22 the Board if you would like that.

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1 CHAIRMAN BRODSKY: Fantastic.
2 MR. McGRATH: Would you like --
3 CHAIRMAN BRODSKY: Yes. We'll
4 take administrative notice, but it is not part
5 of the evidentiary record, let the record
6 reflect.
7 MR. HIBEY: Can I get into what I
8 was going to get into, which is have you seen
9 the Voluntary Agreement in this case?
10 MR. McGRATH: Yes, I've read it
11 from start to finish.
12 MR. HIBEY: Okay. Can you tell me
13 how termination of the Voluntary Agreement
14 would affect you and the neighborhood?
15 MR. McGRATH: Yes, I can tell you
16 right now that we believe the Voluntary
17 Agreements preserve and protect the
18 neighborhood, not only in the quality of life
19 sense, but in the historic preservation sense.
20 You know, we represent tenants,
21 people that are rental housing, but we are
22 very concerned about historic preservation in

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1 the city. For 30 years I worked on historic
2 preservation and landlord/tenant issues. And
3 the ANC people can confirm that and the DCCA
4 people can confirm that, and the Zoning
5 Commission can confirm it, and the BZA can
6 confirm it.
7 And I want to say that statement,
8 Mr. Counsel for the Applicant, is a very broad
9 ranging statement. It goes beyond a mere
10 academic discussion on the value of VAs. It
11 goes to a discussion of the problems generated
12 by excessive alcoholic beverage licensing in
13 a very concentrated area; i.e., the 17th
14 Street strip between P and R Streets,
15 Northwest.
16 Forgive my anger, but I'm getting
17 really angry when I hear that kind of clamp
18 down on my putative testimony here. I've been
19 here for three hours and I don't like the idea
20 of being gag ruled, or just completely shut
21 off by your suggestion. I'm Irish. I've
22 sorry, this is a little bit of a low fuse

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1 topic here. Okay?
2 CHAIRMAN BRODSKY: Are you
3 referring to Mr. Kline, were you just talking
4 to, or are you talking to your own lawyer?
5 MR. McGRATH: I'm talking off the
6 top of my head.
7 CHAIRMAN BRODSKY: Just in
8 general? I got you. I got you. Well, I
9 sympathize with you. I've been sitting here
10 for three hours, too. So, you know, I'd
11 rather be outside going for a nice bike ride
12 or a run today, to be honest with you. But
13 unfortunately I have --
14 MR. McGRATH: I wouldn't mind
15 having an oyster at Hank's Oyster Bar.
16 CHAIRMAN BRODSKY: But I will
17 tell, sir, that I have a certain
18 responsibility to the process, so I got to do
19 my job, too, while I'm up here. So, it's not
20 personal to you.
21 MR. McGRATH: I respect that, Mr.
22 Chairman. I apologize if I got out of line.

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1 CHAIRMAN BRODSKY: Everybody has a
2 right to get passionate.
3 MR. McGRATH: All right.
5 MR. HIBEY: In yes or no,
6 terminating the Voluntary Agreement would
7 adversely impact you and the neighborhood?
8 Yes, or no?
9 MR. McGRATH: Yes.
10 MR. HIBEY: That's it.
11 MR. KLINE: I have no questions.
12 CHAIRMAN BRODSKY: Board?
13 MEMBER ALBERTI: Yes, can I ask
14 one quick question?
15 CHAIRMAN BRODSKY: You can, Mr.
16 Alberti.
17 MEMBER ALBERTI: Very
18 specifically, and I mean very specifically, in
19 what way would terminating the Voluntary
20 Agreement adversely impact you? Be very
21 specific, otherwise I'm just going to stop you
22 and your answer and we'll move on.

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1 MR. McGRATH: Well, you know, Mr.
2 Board Member, I will do the best I can.
3 Sometimes it works and sometimes it doesn't.
4 I would simply say that
5 terminating these Voluntary Agreements
6 completely overlooks two key elements involved
7 in these license applications. One is the
8 grant of enormous public space that makes them
9 possible and enormously profitable. And the
10 second is that they're located in high-density
11 residential zoning areas for the most part
12 that are very seriously impacted by them. And
13 if you want to gloss those things and say
14 they're irrelevant and you don't want to hear
15 more about it, that's your choice.
17 MR. McGRATH: But I think you're
18 cutting off a very important avenue of
19 information if you do.
20 MEMBER ALBERTI: I think I have
21 gotten my answer. Thank you, Mr. McGrath.

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1 Any other -- thank, sir. Thank
2 you for being here today. Thank you for
3 taking your time.
4 Mr. Hibey?
5 MR. McGRATH: Mary Latka.
6 CHAIRMAN BRODSKY: Hello, ma'am.
7 Thank you for being here. Will you raise your
8 right hand for me? Do you affirm that the
9 testimony you'll give is the truth, the whole
10 truth and nothing but the truth?
11 MS. LATKA: I will.
13 much.
14 MR. HIBEY: Good afternoon. Would
15 you please state your name?
16 MS. LATKA: Mary Latka.
17 MR. HIBEY: And where do you live?
18 MS. LATKA: 1701 Massachusetts
19 Avenue, Northwest.
20 MR. HIBEY: And how long have you
21 lived there?
22 MS. LATKA: I've been there since

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1 January 1960.
2 MR. HIBEY: Did you prepare a
3 statement for the Board?
4 MS. LATKA: Yes, I did.
5 MR. HIBEY: Do you have it with
6 you?
7 MS. LATKA: I have it.
8 MR. HIBEY: Can I see it?
9 MR. KLINE: Mr. Chairman, I'm
10 going to object on the grounds of process.
11 We're in a contested case hearing. I think
12 Mr. Hibey is aware of the provisions that
13 govern contested case hearings, and certainly
14 prepared statements are not one of those
15 provisions. So if this is what we're going to
16 have, note my continuing objection and the
17 Board can do with it what it wishes.
18 CHAIRMAN BRODSKY: You're
19 objecting to what exactly, Mr. Kline?
20 MR. KLINE: Written statements
21 being proffered as testimony.
22 CHAIRMAN BRODSKY: As opposed to

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1 testimony?
2 MR. KLINE: Yes.
3 CHAIRMAN BRODSKY: Understood.
4 Well-noted objection.
5 Go ahead, Mr. Hibey.
6 MR. HIBEY: Well, what I was going
7 to do next is have her read the statement or
8 have the statement be submitted, and I was
9 going to ask no further questions to move this
10 process along.
11 CHAIRMAN BRODSKY: Why don't you
12 just start with asking her questions and then
13 she can recite things from her statement and
14 to the answers to your questions?
15 MR. HIBEY: That's fine.
16 CHAIRMAN BRODSKY: Go ahead.
17 MR. HIBEY: I thought it was
18 faster this way.
19 Ms. Latka, you stated you've lived
20 in the neighborhood for how long?
21 MS. LATKA: Since 1960.
22 MR. HIBEY: Okay. And where is

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1 your home in relation to Hank's Oyster Bar?
2 MS. LATKA: It's about three
3 blocks away.
4 MR. HIBEY: Can you tell me how
5 Hank's Oyster Bar affects you and the
6 neighborhood you live in?
7 MS. LATKA: Well, I live, as I
8 said, three blocks away, so I can't say that
9 it's noisy or anything. I'm far away, so you
10 know, I wouldn't know about that. I guess it
11 would be like other establishments of the same
12 distance.
13 MR. HIBEY: Okay. Have you seen
14 the Voluntary Agreement in this matter?
15 MS. LATKA: Yes, I've seen it.
16 I've read it.
17 MR. HIBEY: Okay. Can you tell me
18 how termination of the Voluntary Agreement
19 would adversely impact you or the
20 neighborhood?
21 MS. LATKA: Well, I think if it's
22 going to increase in size, there would be more

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1 noise and probably affect peace and order in
2 the community.
3 MR. HIBEY: Okay. Thank you.
4 CHAIRMAN BRODSKY: Mr. Kline?
5 MR. KLINE: May I approach the
6 witness?
7 CHAIRMAN BRODSKY: You may.
8 MR. KLINE: Ms. Latka, I want to
9 you show you what's attached to the
10 investigator's report as Exhibit 5. It's a
11 map of the neighborhood. Do you recognize
12 that as a map of your neighborhood?
13 MS. LATKA: If I find where I
14 live. Let's see. I'm on Massachusetts Avenue
15 and 17th Street.
16 CHAIRMAN BRODSKY: It's right at
17 the bottom of that map, ma'am.
18 MR. KLINE: Can you take my pen,
19 please, and circle approximately where you
20 live?
21 MS. LATKA: I'm trying to figure
22 out the street.

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1 CHAIRMAN BRODSKY: You should be
2 at the bottom.
3 MS. LATKA: Yes, it would be down
4 here.
5 CHAIRMAN BRODSKY: There you go.
6 Yes, you got it.
7 MS. LATKA: This is 18th, so that
8 would be 17th.
9 MR. KLINE: Okay. Thank you. I
10 don't have any further questions of the
11 witness.
12 CHAIRMAN BRODSKY: Any questions
13 from the Board?
15 CHAIRMAN BRODSKY: I have one.
16 Your last name again?
17 MS. LATKA: Latka, L-A-T-K-A.
18 CHAIRMAN BRODSKY: I'm a little
19 confused, Ms. Latka. Who asked you to be here
20 today to testify?
21 MS. LATKA: Mr. Mallof, David
22 Mallof.

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1 CHAIRMAN BRODSKY: And, you know,
2 this is like politics. All this stuff is kind
3 of very local, you know? So this is sort of
4 local. And I'm looking at the map, which I
5 guess you have in front of you, and by my
6 calculation I think you're six blocks away.
7 MS. LATKA: No, that's not right.
8 CHAIRMAN BRODSKY: Four blocks?
9 MS. LATKA: I go to the Safeway,
10 and it's only four short blocks away. And
11 this place is two blocks south of Safeway.
13 MS. LATKA: So, it's about three
14 blocks away. That's Massachusetts Avenue and
15 17th is -- N Street, and then there's O Street
16 and P Street.
17 CHAIRMAN BRODSKY: P, Q, R,
18 Church.
19 MS. LATKA: And Q. There is no O
20 Street because it's -- well, it is -- there is
21 no -- it's not a through street.
22 CHAIRMAN BRODSKY: Yes. Have you

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1 ever been awakened by noise coming out of
2 Hank's Oyster Bar?
3 MS. LATKA: No, I live too far
4 away.
5 CHAIRMAN BRODSKY: Okay. Thank
6 you very much. Thank you.
7 Any other questions? Oh, Mr.
8 Gandhi?
9 MEMBER GANDHI: Do you believe
10 that there would be an adverse effect without
11 a Voluntary Agreement with Hank's?
12 MS. LATKA: Well, it's --
13 MEMBER GANDHI: Do you think bad
14 things would happen if there was no VA?
15 MS. LATKA: Will, it would be more
16 noise for the people, the residents who live
17 in that area, I would think, having more
18 people eating and drinking in the late hours
19 of the night.
20 MEMBER GANDHI: Well, they can
21 already eat, yes, so it's just the drinking
22 part. It's not even the drinking part.

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1 They'd have to go through a process.
2 MS. LATKA: I feel the Voluntary
3 Agreement is fine as it is for the
4 neighborhood and the resident as is. That's
5 my opinion.
6 MEMBER GANDHI: The residents as
7 in including you, or just the immediate
8 residents?
9 MS. LATKA: Well, the immediate
10 residents.
11 MEMBER GANDHI: How about your
12 people at 17th and P, you said, your building
13 there?
14 MS. LATKA: Pardon?
15 MEMBER GANDHI: How about the
16 people that live in your -- do you live in a
17 high rise, or do you live --
18 MS. LATKA: Yes.
19 MEMBER GANDHI: So how about the
20 people in your high rise at 17th and P? Do
21 you think it will affect them?
22 CHAIRMAN BRODSKY: Mass. 17th and

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1 Mass.
2 MEMBER GANDHI: I'm sorry, 17th
3 and Mass.
4 MS. LATKA: They would feel the
5 same way I suppose because we're four blocks
6 away.
7 MEMBER GANDHI: So, I don't
8 understand the answer.
9 MS. LATKA: They would probably
10 feel that more people that are being seated in
11 the restaurant will cause more noise and --
12 MEMBER GANDHI: Do you feel that
13 wy?
14 MS. LATKA: I feel that way, too.
15 MEMBER GANDHI: You do?
16 MS. LATKA: I mean, I'm feeling
17 for the people, not for myself.
18 MEMBER GANDHI: No, I'm just
19 talking about you though. How about you? You
20 personally. You, Ms. Latka.
21 MS. LATKA: Yes?
22 MEMBER GANDHI: That's what I'm

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1 talking about. Forget about other people. I
2 care about you. Will you be affected if there
3 was no Voluntary Agreement?
4 MS. LATKA: I guess personally I
5 won't, but as I said, I find the Voluntary
6 Agreement is a good agreement.
7 MEMBER GANDHI: Okay. Btu just in
8 general you find it's a good agreement?
9 MS. LATKA: Yes.
10 MEMBER GANDHI: But for Hank's,
11 how about for Hank's? We're only here for
12 Hank's today. We're not here for all VAs.
13 Does that impact you?
14 MS. LATKA: Well, I don't know how
15 to answer that.
16 MEMBER GANDHI: Okay. And that's
17 fair enough. Thank you very much. I
18 appreciate you being a resident here.
20 questions?
21 MR. KLINE: I don't have anything.
22 CHAIRMAN BRODSKY: Ms. Latka,

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1 thank you for taking your time to be here
2 today.
3 MS. LATKA: Oh, you're welcome.
4 CHAIRMAN BRODSKY: We appreciate
5 it.
6 Mr. Hibey?
7 MR. POOZESH: Good afternoon.
8 MEMBER JONES: Good afternoon.
10 Would you please raise your right hand for me?
11 Thank you, sir. Do you affirm that testimony
12 you'll give is the truth, the whole truth and
13 nothing but the truth?
14 MR. POOZESH: I do.
16 much.
17 MR. HIBEY: Good afternoon.
18 Please state your name for the record.
19 MR. POOZESH: My name is Abdi
20 Poozesh, P-O-O-Z-E-S-H. I live in 1620 Q
21 Street, just next door to Hank's.
22 MR. HIBEY: When did you purchase

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1 the property?
2 MR. POOZESH: 2003.
3 MR. HIBEY: And there is one
4 property in between yours and Hank's?
5 MR. POOZESH: At this point there
6 is one property between us, but she wants to
7 expand to that location. That's where the
8 problem for me comes in.
9 MR. HIBEY: Well, have you read
10 the Voluntary Agreement in this case?
11 MR. POOZESH: Not the way you guys
12 read it, but yes.
13 MR. HIBEY: Do you understand that
14 the Voluntary Agreement gives you protections?
15 MR. POOZESH: As a residence, yes.
16 MR. HIBEY: What protections does
17 the Voluntary Agreement give you?
18 MR. POOZESH: Well, limited to
19 hours, noise, trash, hours of operation, being
20 careful about opening very late at night and
21 closing the doors indoors.
22 MR. HIBEY: If the Voluntary

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1 Agreement is terminated how would you be
2 impacted?
3 MR. POOZESH: In my case very,
4 very badly I will be affected.
5 MR. HIBEY: And how so?
6 MR. POOZESH: Because I live next
7 door. I live adjacent to the proposed
8 building that she wants to -- at this point I
9 have to say oyster bar is a really very good
10 restaurant. I have to say that. Is very
11 nicely managed and very nicely operated to
12 this point. I've had food with my family and
13 things. Very good restaurant. No question
14 about that. Nobody is doing that.
15 But expansion of these hours,
16 expansion to this next door to me, for me it's
17 going to crucify me and my family. I have
18 worked very hard to make our building, to buy
19 that building. I believe anybody here wants
20 to be living next to a restaurant. I don't
21 believe anybody wants to be in my shoes, in my
22 family's.

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1 MR. HIBEY: What do you do for a
2 living?
3 MR. POOZESH: I have three art
4 gallery, framing art gallery, two of them
5 located in D.C. I'm pro-business. I'm not
6 against business. I don't object to that. As
7 I said, Hank's is a very good restaurant.
8 They're top quality. I admire her managing
9 that. I don't have any objection to this
10 point, even though at some point some of the,
11 you know, patrons get a little bit later at
12 night, try to have good time. I can hear them
13 in my living room. But at this point, well,
14 I knew where I'm living when this is fact of
15 living in a very diverse location.
16 MR. HIBEY: Do you think expansion
17 on the number of seats would have an impact on
18 you and family in the neighborhood?
19 MR. POOZESH: At this existing
20 location?
21 MR. HIBEY: Yes.
22 MR. POOZESH: No. But if they

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1 wants to expand adjacent to my building, yes.
2 MR. HIBEY: What about hours?
3 What if they had longer hours later into the
4 night?
5 MR. POOZESH: Of course affects
6 me.
7 MR. HIBEY: How?
8 MR. POOZESH: It affects me
9 because I'm next door. We are sharing the
10 same wall. And only exception, you're talking
11 about all these businesses 17th Street,
12 comparing them. None of them is -- all of
13 them, they have buffer zone. All of them,
14 they -- none of them is adjacent to a
15 residential location. None of these
16 restaurant that you're talking about, Annie's,
17 Fox, Trios, none of them sharing wall-to-wall
18 with residence. This is a very exceptional
19 location. That's why my objection is to even
20 her -- for her expansion. I don't know what
21 the Board decide to do regarding volunteer,
22 but if she wants to expand next to me, I guess

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1 you have to get prepared to go Supreme Court.
2 I don't believe Mr. Kline can take you to
3 court, but I guess you have to be very
4 expensive.
5 MR. HIBEY: I don't have --
6 MR. POOZESH: I'm sorry I have to
7 try to --
8 CHAIRMAN BRODSKY: No, that's
9 okay. Just, you know, we're trying to stay on
10 the clock.
11 Mr. Kline?
12 MR. KLINE: Yes, good afternoon,
13 sir. So your objection is really to the
14 expansion, correct?
15 MR. HIBEY: Objection.
16 MR. POOZESH: Both of them,
17 expansion and the Voluntary Agreement. At
18 this point as I say it's a very good
19 restaurant. They close 11:00. It doesn't
20 bother me.
21 CHAIRMAN BRODSKY: Sir, can you
22 hold on one second? Can you hold on?

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1 I totally missed it because I was
2 trying to figure something out with Mr.
3 Gandhi. So I apologize. So, your objection
4 is?
5 MR. HIBEY: I withdraw that. He
6 answered the question. It's fine.
8 MR. HIBEY: I'm sorry.
9 CHAIRMAN BRODSKY: That's okay.
10 All right. Mr. Kline, you may
11 cross-examine.
12 MR. KLINE: So as the restaurant
13 is currently configured it's not directly
14 adjacent to your house, correct?
15 MR. POOZESH: No.
16 MR. KLINE: All right. And as
17 you've testified your concern is that it will
18 expand into the building next door, correct?
19 MR. POOZESH: Exactly.
20 MR. KLINE: All right. That
21 really doesn't have anything to do with
22 termination of the Voluntary Agreement, does

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1 it?
2 MR. POOZESH: Of course at this
3 point --
4 MR. KLINE: Wait, let me finish my
5 question.
6 MR. POOZESH: Okay.
7 MR. KLINE: Again, we've got a
8 court reporter and it will be just a lot
9 clearer if this has to to the court of
10 appeals.
11 MR. POOZESH: The only thing I
12 want to be as -- the only thing I want to be
13 as elaborate as other witnesses. Go ahead.
14 MR. KLINE: I'm sorry?
15 MR. POOZESH: Just wanted to be
16 also elaborate as your witnesses, to let me
17 talk as much as well. Go ahead.
18 MR. KLINE: You're still welcome
19 to talk and answer my questions.
20 MR. POOZESH: Please go ahead. Go
21 ahead ask the question.
22 MR. KLINE: All right. Now, this

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1 premises is zoned C-2-B, correct?
2 MR. POOZESH: I don't know about
3 this C-2-B, but is a commercial building yes.
4 MR. KLINE: You don't know about
5 that?
6 MR. POOZESH: Yes.
7 MR. KLINE: All right. Would it
8 be okay with you if a billiard parlor opened
9 next to you?
10 MR. POOZESH: What is a --
11 MR. KLINE: A pool hall. Would
12 you be okay with a pool hall opening next to
13 you?
14 MR. POOZESH: If they close at
15 10:00, 11:00 it's okay.
16 MR. KLINE: All right. You're
17 aware, are you not, if they didn't have an
18 alcohol license there wouldn't be any basis to
19 order them to close early, aren't you? You
20 know that?
21 MR. POOZESH: As long as alcohol
22 it's -- that's coming in, no, I don't have any

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1 problems. It would be a very good flower
2 shop, the bakery, any kind of --
3 MR. KLINE: All right. The fact
4 of the matter is you've never had any problem
5 with Hank's Oyster Bar, have you?
6 MR. POOZESH: At this point, no.
7 MR. KLINE: Okay. No further
8 questions. Thank you.
9 CHAIRMAN BRODSKY: Any Board
10 Member questions?
11 MEMBER ALBERTI: Yes, I do. Thank
12 you, Mr. Chairman.
13 Mr. Poozesh, just for the record,
14 I believe it's a C-2-A, and this is what we
15 have in our records, the zoning for this area.
16 MR. KLINE: Mine says C-2-B.
17 MEMBER ALBERTI: Well, I'm not
18 going to argue that point. The point is it is
19 a commercial area.
20 I guess my question really is when
21 you moved in has the type of zoning for this
22 area changed since you moved in?

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1 MR. POOZESH: This building wasn't
2 commercial. This building happened to be
3 changed to commercial about maybe two years
4 ago.
5 MEMBER ALBERTI: The zoning
6 changed or the building changed?
7 MR. POOZESH: For this building
8 that is adjacent to my building. Oyster bar
9 is 1624. My building is 1620.
10 MEMBER ALBERTI: The zoning for
11 your entire square, for your entire block, the
12 zoning that the District allows, has that
13 changed since you bought it?
14 MR. POOZESH: Yes.
16 MR. POOZESH: One building has
17 changed. The building adjacent to my building
18 has changed to commercial after I moved in.
20 MR. POOZESH: Am I answering your
21 question?
22 MEMBER ALBERTI: Okay. Yes, I'm a

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1 little confused by it, but I'll accept that
2 answer.
3 I am going to a question sort of
4 in the line that was asked to you earlier. If
5 there was like an all-night diner that didn't
6 have a liquor license went in next door, would
7 you object to that?
8 MR. POOZESH: If they close early,
9 no. If they close like 10:00, no.
10 MEMBER ALBERTI: Okay. So, is it
11 fair to say that it's not the fact that
12 they're serving alcohol, it's the hours in
13 which they're operating that's a problem for
14 you?
15 MR. POOZESH: The hours. But as I
16 say at the beginning, at this location they
17 are one building away from me and they close
18 always 11:00 at night.
19 MEMBER ALBERTI: Okay. But it's
20 not the fact that --
21 MR. POOZESH: (Off microphone) the
22 noise at this point.

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1 MEMBER ALBERTI: But it's not the
2 fact that they're serving alcohol?
3 MR. POOZESH: Of course alcohol
4 makes you louder. I don't know, if you --
5 it's very -- when people drink alcohol --
6 MEMBER ALBERTI: No, I have that.
7 MR. POOZESH: -- they get louder,
8 they try -- they start joking.
9 MEMBER ALBERTI: But you would
10 object even though if they weren't serving
11 alcohol, if they were going to be opening
12 until 12:00?
13 MR. POOZESH: Most in that time
14 you call police, you say these people are
15 making noise.
17 MR. POOZESH: I mean, noise is
18 just --
19 MEMBER ALBERTI: Okay. I think I
20 have my answer. Thank you very much.
22 Thank you very much.

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1 Any other recross or redirect?
2 MEMBER JONES: Just one quick
3 question, yes.
5 MEMBER JONES: I think during your
6 testimony you mentioned that if the expansion
7 occurred it would crucify you and your family.
8 MR. POOZESH: It crucify me and my
9 family because --
10 MEMBER JONES: How would it --
11 MR. POOZESH: Property value in my
12 building is going to go down. I can't sell
13 that building anymore. I have to live there
14 and just suck it up.
15 MEMBER JONES: And you believe
16 that is --
17 MR. POOZESH: Of course happens.
18 You like to live next to a restaurant, or
19 buy --
20 MEMBER JONES: I have no problem
21 living next to a restaurant, none whatsoever.
22 MR. POOZESH: But you don't want

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1 to go buy a building that's --
2 MEMBER JONES: I actually own
3 property that is next to a restaurant, so I'd
4 caution you to make just general statements
5 about that.
6 MR. POOZESH: And then when you
7 want to sell it --
8 CHAIRMAN BRODSKY: Sir, you're not
9 supposed to be asking a Board Member a
10 question like that. Thank you so much. I
11 appreciate it.
12 Mr. Jones, any other questions?
13 MEMBER JONES: No, sir.
15 much.
16 Mr. Gandhi?
17 MEMBER GANDHI: Thank you, Mr.
18 Chair.
19 I think in a few weeks there's
20 going to be a hearing on a substantial change
21 for Hank's as well. Are you familiar with
22 that?

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1 MR. POOZESH: I haven't heard.
2 MEMBER GANDHI: You don't know?
3 Okay.
4 MR. POOZESH: I work really eight
5 days a week to maintain my expenses. I have
6 no --
7 MEMBER GANDHI: Okay. Just so you
8 know, there's going to be another hearing
9 because they applied to go next door as well,
10 and that's --
11 MR. POOZESH: I hope I'll be
12 inform of it, yes.
13 MEMBER GANDHI: I'm sure they'll
14 tell you. But I really want to focus in on
15 the Voluntary Agreement, because that's why
16 we're here.
17 MR. POOZESH: Okay.
18 MEMBER GANDHI: Okay? We went
19 over the capacity part of it and the hours.
20 But, let's say there was no Voluntary
21 Agreement. Do you think -- as it stands now.
22 Let's forget about the expansion for a second.

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1 Okay?
2 MR. POOZESH: Yes.
3 MEMBER GANDHI: Because that's
4 another hearing coming up. But just as it
5 relates right now, do you feel if there was no
6 Voluntary Agreement that it would affect you?
7 MR. POOZESH: Yes.
8 MEMBER GANDHI: Okay. And --
9 MR. POOZESH: You want me to tell
10 you how?
11 MEMBER GANDHI: Well, I think you
12 may have mentioned how, but --
13 MR. POOZESH: They open late at
14 night I can't go to sleep, if like 1:00, 2:00,
15 of course.
16 MEMBER GANDHI: Okay. And are
17 there any other residences, or are you in a
18 unique position?
19 MR. POOZESH: Is a single-family
20 house.
21 MEMBER GANDHI: It's a single-
22 family house?

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1 MR. POOZESH: Yes.
2 MEMBER GANDHI: And you do share a
3 wall, or you don't share a wall?
4 MR. POOZESH: At this point, no.
5 At this point there is a building between us.
6 But she wants to expand to that location.
7 MEMBER GANDHI: Right. And what's
8 on the other side of you?
9 MR. POOZESH: Another row house
10 attached to my building.
11 MEMBER GANDHI: Residential?
12 MR. POOZESH: Residential, yes.
13 After me everything is residential.
14 MEMBER GANDHI: After you
15 everything is residential?
16 MR. POOZESH: Yes.
17 MEMBER GANDHI: There's no other
18 businesses?
19 MR. POOZESH: No. In my south --
20 I'm sorry, in my east, northeast part of the
21 building everything is residential.
22 MEMBER GANDHI: Okay. Thank you.

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1 I appreciate it.
3 any other questions? Gentlemen?
6 much, sir, for being here today. We
7 appreciate it.
8 MR. POOZESH: You're welcome.
9 MR. POOZESH: I call David Mallof.
10 CHAIRMAN BRODSKY: Please raise
11 your right hand. Do you affirm that the
12 testimony you give is the truth, the whole
13 truth, nothing but the truth?
14 MR. MALLOF: I do.
16 Be seated.
18 MR. HIBEY: Good afternoon, Mr.
19 Mallof. Will you please state your name?
20 MR. MALLOF: Yes, I'm David J.
21 Mallof, M-A-L-L-O-F. I'm a 27-year resident
22 of the District. I've lived in Dupont Circle

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1 all that time, 1332 22nd Street at the corner
2 of O, across from the McDonald's dumpster, at
3 1624 Corcoran for about five years, and then
4 since 1993 at 1711 Q Street, about 280 feet
5 from Hank's.
6 And I'm proud to be a resident
7 here and proud to see Dupont Circle behind the
8 Board Members every time I come in here.
9 That's the one shining moment. We all love
10 the city, I might add, and we all want it to
11 grow. There may be some differences of
12 opinion on how it should happen, but only in
13 slight measure.
14 MR. HIBEY: Mr. Mallof, did you
15 sign a Voluntary Agreement with the Licensee?
16 MR. MALLOF: Yes.
17 MR. HIBEY: And are you testifying
18 today on behalf of the group of signatories to
19 the Voluntary Agreement?
20 MR. MALLOF: Yes.
21 MR. HIBEY: And on your own
22 behalf, correct?

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1 MR. MALLOF: Yes.
2 MR. HIBEY: Okay. There was just
3 some discussion in prior testimony about
4 the --
5 CHAIRMAN BRODSKY: Mr. Hibey, let
6 me just ask one quick question.
7 MR. HIBEY: Yes.
8 CHAIRMAN BRODSKY: Is your witness
9 testifying on behalf of the -- I don't have
10 the signatory page here. You've got six
11 signatories I think to this VA, of this group?
12 MR. HIBEY: Yes.
13 CHAIRMAN BRODSKY: So, is it your
14 witness' claim that he's testifying on behalf
15 of all of those people?
16 MR. MALLOF: Oh, yes. I have
17 power of attorney.
18 CHAIRMAN BRODSKY: I'm sorry, sir,
19 I'm not asking you. I'm asking your attorney.
20 MR. HIBEY: I was going to ask
21 him, but I think the answer's yes.
22 CHAIRMAN BRODSKY: Okay. Do you

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1 have a letter that signifies that he's the
2 representative of that group in some fashion?
3 MR. HIBEY: I think it's on --
4 MR. MALLOF: Absolutely. The
5 original protest letter.
6 (Whereupon, the Chairman pounded
7 the gavel.)
9 MR. HIBEY: If you could ask the
10 witness directly.
11 CHAIRMAN BRODSKY: I didn't really
12 want to ask the witness. I'm asking you.
13 It's your case.
14 MR. HIBEY: Yes, it is my belief
15 that he is a designated representative.
16 CHAIRMAN BRODSKY: I'm just
17 checking. I want to make sure if he's out
18 there speaking on behalf of other people that
19 you've got something that says he is. I just
20 don't know. I mean, I see his signature here,
21 but I didn't know he was speaking on behalf of
22 one, two, three, four -- of all six of these

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1 people, and if they've been contacted and they
2 actually know that he's speaking on their
3 behalf.
4 MR. KLINE: Mr. Chairman, if I
5 may, this is a contested case hearing, which
6 means that we're here to hear evidence. Mr.
7 Mallof obviously can only testify as to what
8 he knows. His opinions, unless he's qualified
9 as an expert, and I haven't heard that that's
10 what's going to happen, are completely
11 irrelevant. So whether he's testifying for
12 other people, whatever that means, he can
13 testify as to his own knowledge, and I'm not
14 sure it's terribly relevant in terms of who it
15 is that he thinks he is or is not testifying
16 for.
17 CHAIRMAN BRODSKY: Okay. Then if
18 I'm making a mountain out of a molehill, I
19 certainly don't want to do that.
21 MR. HIBEY: Mr. Mallof, can you
22 describe for the Board how the operation of

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1 Hank's Oyster Bar impacts you and the
2 neighborhood?
3 MR. MALLOF: Well, Hank's is very
4 close to my house. We sleep in the front of
5 the building, as most of the other -- as many
6 of the other residents along Q Street do.
7 It's the main corridor between the vital
8 corner of 17th and Q and the Metro. A lot of
9 foot traffic, a lot of people circling for
10 parking. And as Mr. Zybach mentioned, 17th
11 Street is known as a place to party late at
12 night. So, I mean, I love the neighborhood.
13 We love living there, but we are directly
14 impacted being 280 feet away.
15 MR. HIBEY: And is that why you
16 protested in 2005 Hank's application for --
17 well, transfer of license?
18 MR. MALLOF: Well, forgive me, our
19 process is broken. Title 25 needs repair.
20 This talented board I would hope going forward
21 would promulgate its own administrative law so
22 that we wouldn't have to protest, but we can

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1 get into if you like. The elements of the
2 Voluntary Agreement in large measure were
3 negotiated because 19 of them don't have any
4 administrative regs by ABRA. And as a lay
5 person, we've come to appreciate that if you
6 have any concerns about an establishment,
7 you've got to file the letter, appear at a
8 roll call, appear at a status, go to
9 mediation. And it is -- I call it the MOnty
10 Hall, Let's Make a Deal process, when I would
11 just prefer to look to Board regs on many of
12 these dimensions.
13 So, yes, we filed because that's
14 the way things work in the District of
15 Columbia and I feel personally as a matter of
16 business process the Board could serve all of
17 us better, licensees and taxpayers, by
18 promulgating administrative law rather than
19 going through what is really a Voluntary
20 Agreement-centric process. And now today
21 we're criticizing it, and it's sort of like --
22 I really don't feel we can have it both ways.

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1 So, I would reform it, but yes, we file
2 because we have no other choice.
3 In addition, the ANC doesn't step
4 up and they don't step up for a variety of
5 reasons. In this case, the ANC --
7 MR. MALLOF: -- the ANC chose to
8 look the other way.
9 CHAIRMAN BRODSKY: Can I ask you
10 to keep your witness a little bit more on
11 track?
14 much.
15 MR. HIBEY: Do you have a copy of
16 the Voluntary Agreement with you?
17 MR. MALLOF: Oh, I do.
18 MR. HIBEY: Okay. I'd like you to
19 walk through the Voluntary Agreement and
20 describe to the Board the provisions that
21 provide you with protection and how you would
22 be impacted if the Voluntary Agreement was

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1 terminated.
2 MR. MALLOF: Sir, it's getting
3 late. Would you have an interest in
4 submitting the document I've prepared? I'll
5 do whatever you like. There are 19 provisions
6 of the Voluntary Agreement that are not
7 addressed by Board regulations, and there are
8 21 that I itemized here that are contained
9 within the Voluntary Agreement. These are
10 things that we had to do because no one else
11 does them and no one's ever criticized them.
12 Most of these aren't reasonable as a matter of
13 condition for the privilege of ABC licensing.
14 ABC licensing is premised on not the positive
15 ambience impacts, but the possible negative
16 impacts. That's why the licenses exist as
17 public goods. So, we have a list of 21 and I
18 hope you will submit it to the Board here.
19 That includes most importantly, I might add,
20 public space, the use of public property
21 and --

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1 MR. MALLOF: -- the dimensions of
2 that.
3 CHAIRMAN BRODSKY: Can you ask
4 your witness a question?
5 MR. KLINE: Objection.
6 CHAIRMAN BRODSKY: And I have no
7 idea where your witness is right now. I'm
8 telling you, if you polled the Board right
9 now, none of these guys have a single clue
10 where this guy's going. So if you could get
11 your witness to answer the question that's
12 asked. If not, then we'll just dismiss him
13 and we'll move on, because I'm not going to
14 spin wheels like this.
15 MR. HIBEY: Mr. Mallof?
16 MR. MALLOF: Yes?
17 MR. HIBEY: Answer my questions
18 only, please.
19 MR. MALLOF: Yes.
20 MR. HIBEY: Okay. Look at Section
21 2 of the Voluntary Agreement.
22 MR. MALLOF: Yes.

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1 MR. HIBEY: Does that provide you
2 with any protection, yes or no?
3 MR. MALLOF: Yes, it does.
4 MR. HIBEY: How so?
5 MR. MALLOF: The Licensee is
6 licensed for 65 seats inside and she's
7 admitted here that she's only using 50, so we
8 both have room to grow.
9 MR. HIBEY: Okay. And if the
10 Voluntary Agreement is terminated how would
11 you be impacted?
12 MR. MALLOF: If the Voluntary
13 Agreement is terminated, I believe that on
14 that dimension she would apply for a
15 substantial change and we would go through a
16 process regarding expansion.
17 MR. HIBEY: How would you be
18 adversely impacted?
19 MR. MALLOF: We would be adversely
20 impacted on the sidewalk caf‚ side of Section
21 2 because I don't really quite know what the
22 seats authorized would be.

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1 MR. HIBEY: Okay. Section 3 of
2 the Voluntary Agreement, I want to direct your
3 attention to that. It deals with the interior
4 hours. Do you believe that Section 3 provides
5 you with protections?
6 MR. MALLOF: Absolutely. We
7 agreed to midnight and 1:00 a.m. on the inside
8 for hours.
9 MR. HIBEY: Okay. If the
10 Voluntary Agreement is terminated how would
11 you be adversely affected?
12 MR. MALLOF: It's adverse. If
13 it's terminated then it's quite possible the
14 hours would be later and we would have to go
15 back into the cycle of protesting.
16 MR. HIBEY: Okay. Is the same
17 true for every section in the Voluntary
18 Agreement?
19 MR. MALLOF: Just about. Yes.
20 MR. HIBEY: Is it your testimony
21 that the Voluntary Agreement, each section
22 provides you and the neighborhood with some

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1 protection?
2 MR. MALLOF: Significantly, yes,
3 in the absence of Board regs.
4 MR. HIBEY: And if the Voluntary
5 Agreement was terminated you will not have
6 those protections?
7 MR. MALLOF: Nineteen of them,
8 correct, out of 21 in the Voluntary Agreement.
9 MR. HIBEY: Okay.
10 CHAIRMAN BRODSKY: Could you just
11 point to one, Mr. Mallof, just so I can see
12 what you're talking about here? You said
13 there's something that's not in the
14 regulations that we potentially should have
15 and that's why it's in here. Could you point
16 to one?
17 MR. MALLOF: Yes, Section 2,
18 public space seats, an agreement to
19 synchronize them with DDoT. It's consistent
20 in the District of Columbia that people say,
21 well, my public space permits more seats than
22 the ABC and they argue that they ought to have

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1 more seats. We agreed specifically that that
2 would be synchronized with the public space
3 for consistency. I feel we're almost doing
4 the job of the District.
5 Public space hours. The Applicant
6 applied for 2:00 a.m. and 3:00 a.m. outside.
7 We had to claw that back and negotiate it as
8 a significant protection.
9 CHAIRMAN BRODSKY: Well, no,
10 you're not answering my question. You're
11 getting a little off track of my question.
12 But what you're saying is there's things that
13 are in here that are in here because they
14 don't really get addressed by ABRA in any
15 other way?
16 MR. MALLOF: Yes, plus --
17 CHAIRMAN BRODSKY: What I'm trying
18 to get a handle on, in addition to No. 2,
19 which I mean that's sort of the C of O, right?
20 That's DCRA, I think. What is your C of O for
21 right now? How many seats? What's your
22 capacity on your C of O?

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1 MS. LEEDS: I think it's for -- it
2 definitely for more than 65. I think it's
3 like 75.
4 CHAIRMAN BRODSKY: Okay. Well, in
5 your whole establishment your C of O allows
6 you to have how many folks, do you know?
7 MS. LEEDS: The total?
9 MS. LEEDS: Eighty.
10 CHAIRMAN BRODSKY: So, you've
11 agreed to 65. So, you've agreed to less than
12 what you're allowed to by law. I got you.
13 Okay. All right.
14 Okay. Mr. Hibey, thank you for
15 the diversion.
16 MR. HIBEY: I'm sorry, sir. I
17 wasn't very clear.
18 MR. MALLOF: May I finish the
19 list?
20 CHAIRMAN BRODSKY: No, I just
21 wanted one.
22 MR. MALLOF: Okay.

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1 CHAIRMAN BRODSKY: I just wanted
2 to see what you're talking about.
3 MR. MALLOF: Okay.
4 CHAIRMAN BRODSKY: Okay. Thank
5 you. Mr. Hibey?
6 MR. HIBEY: Well, I think the
7 witness would like to provide a few more
8 examples.
9 MR. MALLOF: If I may, public
10 space --
11 MR. KLINE: Objection. There's no
12 question.
13 CHAIRMAN BRODSKY: Yes, that's not
14 really relevant, to be honest with you. That
15 was a curious question.
17 MR. HIBEY: Now, earlier there was
18 testimony from one of our witnesses. Was
19 there a misstatement that you wanted to
20 address?
21 MR. MALLOF: Well, I mean --
22 MR. KLINE: Objection as to the

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1 form of the question.
2 CHAIRMAN BRODSKY: Try to ask it a
3 little bit differently, Mr. Hibey, because I'm
4 sure there's about three hours of stuff that
5 he doesn't really agree with.
6 MR. MALLOF: Ms. Leeds'
7 flexibility.
8 CHAIRMAN BRODSKY: So, just
9 restate the question if you can.
10 MR. MALLOF: Well, Ms. Leeds'
11 flexibility.
12 CHAIRMAN BRODSKY: Mr. Mallof?
13 MR. MALLOF: Oh, I'm sorry.
14 CHAIRMAN BRODSKY: You got to let
15 me run my proceeding, right? That's cool. I
16 mean, I'm just trying to do the right thing
17 here.
18 So, Mr. Hibey, you can ask the
19 question if you just restate the way you're
20 asking it so it's a little bit clearer and not
21 so open-ended and so kind of obtuse.
22 MR. HIBEY: I understand.

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2 MR. HIBEY: I don't have any other
3 questions right now.
5 MR. KLINE: Yes, good afternoon,
6 Mr. Mallof. You indicated, you've testified
7 I think repeatedly that there are 19
8 provisions in the Voluntary Agreement that are
9 not addressed by the regulations, correct?
10 MR. MALLOF: I believe so.
11 MR. KLINE: And one of those is
12 hours, correct?
13 MR. MALLOF: No.
14 MR. KLINE: One of those is not
15 hours? Didn't you cite to Section 2 of the
17 MR. MALLOF: Public space hours.
18 MR. KLINE: Public space hours?
19 MR. MALLOF: Correct, sir.
20 MR. KLINE: All right. And your
21 concern there was that they agree, correct?
22 That the hours that are on the public space

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1 permit agree with the hours that are permitted
2 by ABRA, correct?
3 MR. MALLOF: No, we -- no, it's
4 not correct. We did two things. We
5 negotiated less than you applied for. You
6 applied for 2:00 and 3:00 a.m. And now that
7 may be established as a matter of the license.
8 I don't know where that might go. And then
9 secondly, that that be made synchronous. I
10 trust that Ms. Leeds has gone to DDoT and made
11 her hours synchronous with the public space
12 permit.
13 MR. KLINE: So that is one of your
14 provisions that they synchronize, correct?
15 MR. MALLOF: Yes.
16 MR. KLINE: But you're aware, are
17 you not, that the limitation that ABRA put on
18 public space seating and service would govern,
19 aren't you?
20 MR. MALLOF: Yes, they would.
21 MR. KLINE: Okay.
22 MR. MALLOF: But we needed to

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1 negotiate that.
2 MR. KLINE: Well, let's be clear.
3 If ABRA sets hours for outside seating, then
4 those hours govern, correct?
5 MR. MALLOF: Correct.
6 MR. KLINE: And it really doesn't
7 matter whether it synchronizes with DDoT has,
8 does it?
9 MR. MALLOF: Perhaps not to you.
10 MR. KLINE: Okay. Well, my
11 question is does it matter? It's
12 enforceable --
13 MR. MALLOF: To the citizens it
14 matters. It matters that permitting be
15 consistent and congruent.
16 MR. KLINE: We all hope for that.
18 MR. KLINE: Now, you also
19 testified in terms of capacity. The interior
20 capacity is not addressed by the regulations
21 and had to be addressed by the Voluntary
22 Agreement, correct?

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2 MR. KLINE: Isn't the interior
3 capacity governed by the Certificate of
4 Occupancy?
5 MR. MALLOF: Not at all. My
6 understanding is the ABRA process governs the
7 seating based on the appropriateness and the
8 likely impacts, which are separate from C of
9 O for any other purpose.
10 MR. KLINE: Well, we may just have
11 a misunderstanding here.
12 MR. MALLOF: My understanding of
13 the way ABRA is chartered is to look at the
14 impacts that are ABRA-related and to determine
15 that appropriateness.
16 MR. KLINE: Okay.
17 MR. MALLOF: It has nothing to do
18 with the C of O.
19 MR. KLINE: All right. So it's
20 your position that ABRA could set a lower
21 number of seats than it's allowed under the
22 Certificate of Occupancy?

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1 MR. MALLOF: Absolutely.
2 MR. KLINE: Okay.
3 MR. MALLOF: Depending upon the
4 context of the situation. Absolutely.
5 MR. KLINE: All right. Now you
6 indicated that this place is very close to
7 your house, correct?
9 MR. KLINE: Two-hundred-and-eighty
10 feet?
11 MR. MALLOF: I think so.
12 MR. KLINE: That's twenty feet shy
13 of a football field, isn't it? It's almost
14 100 yards away, isn't it?
15 MR. MALLOF: I can hear the street
16 corner.
17 MR. KLINE: That's not my
18 question. My question to you is it's almost
19 a football field away, isn't it?
20 MR. MALLOF: Might be 250. I
21 don't know. Yes. Whatever.
22 MR. KLINE: And the fact of the

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1 matter is this establishment has never
2 disturbed you, has it?
3 MR. MALLOF: I don't know that. I
4 don't card people at 2:00 in the morning.
5 MR. KLINE: So to your knowledge
6 this establishment has never disturbed you,
7 has it?
8 MR. MALLOF: I can't say that.
9 MR. KLINE: Do you have knowledge
10 that it has disturbed you?
11 MR. MALLOF: I cannot parse the
12 impacts at 2:00 a.m. Neighbors are awakened
13 every evening just about at 2:00 a.m. during
14 statutory closing time and 3:00 a.m. on
15 weekends. I can't parse for you the
16 establishment from which people come. And the
17 volume does kick up at about 10:00 p.m., so
18 the public space impacts are very relevant for
19 all of Dupont Circle and for all of the
20 licensed establishments.
21 MR. KLINE: Okay. You haven't
22 answered my question, and perhaps you won't,

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1 but my question is you don't have any
2 knowledge that this establishment has
3 disturbed you in any way, do you?
4 MR. MALLOF: No, not this -- no.
5 MR. KLINE: Okay. And in fact two
6 and three represents the hours that other
7 establishments close, not this establishment,
8 doesn't it?
9 MR. MALLOF: Two and three?
10 MR. KLINE: 2:00 a.m. and 3:00
11 a.m. You testified that there was noise at
12 2:00 a.m. and 3:00 a.m.
13 MR. MALLOF: That's correct. And
14 staggered closing times are good in a
15 residential neighborhood so that some --
16 MR. KLINE: Move to strike.
17 Totally unresponsive to my question.
18 MR. MALLOF: Fine.
19 CHAIRMAN BRODSKY: Agreed.
20 MR. KLINE: So, whatever noise you
21 have heard at 2:00 and 3:00 likely is not
22 coming from Hank's Oyster Bar, correct?

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1 MR. MALLOF: I don't know that.
2 Not correct. I don't know that.
3 MR. KLINE: Okay. Fair enough. I
4 don't have any further questions of the
5 witness.
7 Mr. Gandhi?
8 MEMBER GANDHI: Thank you for
9 taking the time today. Appreciate it, Mr.
10 Mallof. There was testimony saying that
11 Hank's closes I think around midnight. And so
12 I'm just curious if you're hearing a lot of
13 these noises from other establishments.
14 MR. MALLOF: I believe Ms. Leeds
15 testified 10:00 p.m. weekdays, 11:00 p.m.
16 weekends.
17 MEMBER GANDHI: Yes, before
18 midnight.
19 MR. MALLOF: Yes. She has two
20 extra hours, yes. I can't say where the
21 noises come from, and I don't want to sound
22 like a fuddy-duddy, but there are impacts for

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1 all the neighbors.
2 MEMBER GANDHI: So you're saying
3 the termination of this Voluntary Agreement
4 would adversely affect your peace, order,
5 quiet?
6 MR. MALLOF: Yes, along as are a
7 part of the 19 pieces.
8 MEMBER GANDHI: Yes or no?
9 MR. MALLOF: Yes. Yes.
10 MEMBER GANDHI: And even with the
11 substantial change process that the Board has
12 and that the code calls for when the Board
13 determines that there is a substantial change,
14 you believe that you need that extra
15 protection in the Voluntary Agreement as well,
16 correct? I'm not even talking about the
17 expansion. I'm just talking about Hank's
18 right now as it currently stands.
19 MR. MALLOF: Well, sir, yes,
20 because the ANC only voted on seats when there
21 are 19 other dimensions of the Voluntary
22 Agreement that would go away. Yes.

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1 MEMBER GANDHI: Okay. And you're
2 talking about the outdoor hours and things of
3 that sort?
4 MR. MALLOF: Yes.
5 MEMBER GANDHI: Tell me how you
6 believe that if -- let's say, for example,
7 this agreement was terminated and at that
8 point Hank's applied for later hours and it
9 was approved for later hours, how you feel
10 that other establishments on the same block
11 which have later hours as well, 2:00 and 3:00
12 in the morning, how you feel that it's okay
13 for those establishments to have those later
14 hours and not Hank's.
15 MR. MALLOF: Well, sir, this is an
16 issue of equities and unfortunately Ms. Leeds
17 is the last one in here. The death by a
18 thousand cuts approach is to argue that I get
19 what the guy who's been here 20 years gets.
20 And unfortunately the Board has consistently
21 ruled that we have over-concentration and at
22 that street corner, in our minds, hyper-

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1 concentration. And so therefore it's a
2 threshold issue of addition.
3 And on a square matter of
4 fairness, Ms. Leeds should be able to stay
5 open at night outside consistent with everyone
6 else and consistent with the ANC's rules. And
7 that's part of the challenge here. The ANC
8 has its own guidelines for outside hours.
9 They're very reasonable and they don't step
10 up.
11 We asked Ms. Leeds to conform to
12 them. She did. She's been a good neighbor in
13 that regard. And that is a part of the safety
14 cushion. And to argue that the next door
15 neighbor who does not close at 2:00 a.m., 3:00
16 a.m. outside; he closes at 11:00 and 12:00 on
17 the Q side, as the Board ordered after we
18 protested. And the same next door neighbor
19 around the corner closes at midnight for 84
20 seats. That's a lack of consistency. And it
21 is a lack of equity for the other merchants.
22 And they are entitled to fairness.

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1 But we don't get it here when we
2 talk about what about this one? We need the
3 whole moratorium zone to be equitable on
4 outdoor caf‚ hours and the Board's rules
5 unfortunately don't help point to that.
6 MEMBER GANDHI: So, Mr. Mallof,
7 would it be safe to assume that you're really
8 most concerned with the outside hours?
9 MR. MALLOF: Oh, well, I would
10 just like to say that for the most part the
11 critical impacts on residential life,
12 especially where across the street almost
13 everywhere in the moratorium zone it's
14 absolutely 100 percent residential. The
15 critical dimensionalities are the public space
16 impacts for seats, hours and really fa‡ade
17 opening of the facility, which is a
18 substantial change, to the outside. The
19 other --
20 MEMBER GANDHI: You're talking
21 about windows and things of that sort.
22 MR. MALLOF: The other two top

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1 restaurants in the 500 square mile in
2 Washington, D.C. are Komi, number on, Sushi
3 Taro, number two. They don't have any public
4 space. They're all inside. They're good
5 neighbors. A man's and a woman's home is
6 their castle. So, the critical issues here
7 are public space dimensionality.
9 MR. MALLOF: And the Board does
10 not step up to those issues.
11 MEMBER GANDHI: So, let me ask you
12 a question, Mr. Mallof. As a neighbor, if
13 Hank's -- and I'm just asking, right?
14 MR. MALLOF: Yes.
15 MEMBER GANDHI: If they were open
16 on the inside until 2:00 and 3:00 on the
17 weekdays/weekends so they had maximum hours,
18 but the outside was restricted to 11:00 or
19 12:00; you know, I know that there's different
20 times that other establishments are open, that
21 would meet with your approval?
22 MR. MALLOF: May I qualify?

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1 Generally, yes.
2 MEMBER GANDHI: Can't get it,
3 right? I was just looking for a yes or no.
4 MR. MALLOF: Well, a staggered
5 closing time isn't a bad thing, but it's not
6 fair to upon Jamie. It isn't.
7 MEMBER GANDHI: So yes or no?
8 MR. MALLOF: No, I'm cool with
9 outside. But I thought we weren't negotiating
10 for her here. We asked her several times.
11 MEMBER GANDHI: I'm asking you.
12 I'm asking you a question.
13 MR. MALLOF: We asked her several
14 times if she wanted to change it, but she --
15 MEMBER GANDHI: No, don't --
16 don't --
17 MR. MALLOF: -- wants to
18 terminate.
19 MEMBER GANDHI: -- don't talk to
20 me about your settlement talks.
21 MR. MALLOF: Sorry.
22 MEMBER GANDHI: So in the

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1 Voluntary Agreement you have stipulations for
2 the outdoor sidewalk caf‚.
3 MR. MALLOF: Yes.
4 MEMBER GANDHI: And that protects
5 you. It protects the neighbors, quote/unquote
6 protects people from loud noises, things of
7 that sort.
8 MR. MALLOF: Yes.
9 MEMBER GANDHI: Got it. And
10 that's something you don't want to change for
11 the license?
12 MR. MALLOF: I think that's right.
13 MEMBER GANDHI: Okay. However, in
14 No. 3, when you talk about interior hours,
15 that's more of a negotiable item to you in the
16 sense of it may be more, you may not mind it
17 as much?
18 MR. MALLOF: We did not negotiate
19 interior hours heavily. Jamie said she ran
20 a --
21 MEMBER GANDHI: Don't talk to me
22 about your negotiations. I'm just talking

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1 about --
2 MR. MALLOF: Yes.
3 MEMBER GANDHI: -- in general.
4 Okay.
5 MR. MALLOF: Yes, that's correct.
6 MEMBER GANDHI: And these other
7 ones, has loitering, trash removal and outside
8 maintenance been an issue with Hank's?
9 MR. MALLOF: No, not at all, but
10 I'd like to think that it's because we have a
11 Voluntary Agreement.
13 MR. MALLOF: And these dimensions
14 of good citizenship in D.C. become a specific
15 condition of the license.
17 MR. MALLOF: And if we had to, we
18 could come to you.
19 MEMBER GANDHI: And we can enforce
20 it? Got it.
21 MR. MALLOF: And because it's a
22 privilege. It's a privilege.

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1 MEMBER GANDHI: And do you believe
2 that noise, music and -- well, they don't have
3 dancing, because they're restricted to no
4 outdoor music live or taped shall be heard or
5 played in the outdoor caf‚.
6 MR. MALLOF: Yes. We wrote that
7 in. The Board didn't establish no outdoor
8 music outside in a residential area. I'd be
9 grateful if you promulgated a rule.
10 MEMBER GANDHI: All right. I'm
11 curious about these umbrellas. I mean --
12 MR. MALLOF: I don't know about
13 that. We had six protestants, you know?
14 MEMBER GANDHI: So, that wasn't
15 you? That was someone else? Blame it on
16 someone else.
17 MR. MALLOF: Yes.
18 MEMBER GANDHI: All right. But
19 you agree that's a little farfetched, no?
20 MR. MALLOF: Well, you've had more
21 farfetched coming through here, from what I've
22 heard.

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1 MEMBER GANDHI: I'm asking you.
2 MR. MALLOF: Yes. No, that's
3 fine. If that's Ms. Leeds' problem --
4 MEMBER GANDHI: No, it's mine.
5 It's my age.
6 MR. MALLOF: Take it out.
7 MEMBER GANDHI: I'm asking.
8 MR. MALLOF: Take it out.
9 MEMBER GANDHI: And 9.5, all food
10 and drinks shall be -- and I'm sorry to take
11 a few minutes, Mr. Brodsky.
12 CHAIRMAN BRODSKY: No, no. This
13 is good.
14 MEMBER GANDHI: But this is I
15 think important in the process.
16 CHAIRMAN BRODSKY: You're good.
17 You're good, Mr. Gandhi. No, you're good.
18 MEMBER GANDHI: All food and
19 drinks shall be purchased from a server by
20 patrons sitting down. No one standing will be
21 served food or drinks. The consumption of
22 food by each sidewalk caf‚ patron shall be

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1 encouraged. So, you don't want people
2 standing?
3 MR. MALLOF: We don't want a CT
4 outside, correct.
6 MR. MALLOF: CTs are inside.
7 MEMBER GANDHI: You want people
8 sitting down outside? But has that been an
9 issue at all? I mean, do you see a lot of
10 people at Hank's, like such a crowd that they
11 have to stand outside?
12 MR. MALLOF: No, I'm not
13 complaining that they're standing outside.
14 I'm saying that's an important prohibition.
15 We don't want a sardine can of people standing
16 outside. It's a residential neighborhood.
17 MEMBER GANDHI: Okay. I'm just
18 looking through it as we talk.
19 All right. I think I got all the
20 information I need.
22 MEMBER GANDHI: Mr. Mallof, I

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1 really --
2 MR. MALLOF: Thank you so much.
3 MEMBER GANDHI: Look, as a
4 community activist that you are, I really
5 appreciate all your time and energy. All
6 right? Thanks. I have no further questions.
8 any questions?
9 MEMBER NOPHLIN: I have one
10 question.
11 CHAIRMAN BRODSKY: Mr. Nophlin?
12 MEMBER NOPHLIN: First of all,
13 again thank you for coming. You testified
14 that you had a very good relationship with the
15 ANCs? Do you have a fairly good relationship
16 with the ANCs? What is your relationship with
17 the ANCs, let me ask?
18 MR. MALLOF: I don't attend the
19 ANC meetings because they don't step up on ABC
20 issues. They rubber stamp everything. They
21 say they look at their guidelines and they
22 didn't step up on this case. When 2:00 a.m.

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1 and 3:00 a.m. was filed for, we had to step
2 up, sir, and then we got criticized for being
3 minority. We have a right by law. We have a
4 right by law to worry about the residential
5 impacts if the ANC looks the other way.
6 They're inconsistent on their own guidelines.
7 I'd rather they not have the guidelines. I'd
8 rather you promulgate them. So, we stepped
9 up.
10 MEMBER NOPHLIN: No other
11 questions.
12 CHAIRMAN BRODSKY: Any other Board
13 Member questions?
15 CHAIRMAN BRODSKY: I have a couple
16 questions, Mr. Mallof. Do you have a
17 business? Are you working in the District
18 now?
19 MR. MALLOF: Yes. I work largely
20 out of the house, which puts me around the
21 neighborhood a bit. And when I'm not there,
22 I travel quite a bit.

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1 CHAIRMAN BRODSKY: Is it your
2 business, or are you working for somebody
3 else?
4 MR. MALLOF: No, it's me.
5 CHAIRMAN BRODSKY: You have your
6 own, I guess.
7 MR. MALLOF: It's a one-man band.
8 CHAIRMAN BRODSKY: You ever own a
9 retail establishment or a storefront-type
10 business in the District of Columbia?
11 MR. MALLOF: No.
12 CHAIRMAN BRODSKY: Did you ever
13 invest in somebody's business who had a small
14 business or a --
15 MR. MALLOF: Oh, yes.
16 CHAIRMAN BRODSKY: -- restaurant
17 or a bar, a club, or anything like that?
18 MR. MALLOF: Not like that, but --
19 CHAIRMAN BRODSKY: A restaurant?
20 MR. MALLOF: -- I may investments
21 quite a bit in other kinds of businesses,
22 mostly technology.

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1 CHAIRMAN BRODSKY: Yes. Okay.
2 But nothing that requires ABC licensure or
3 anything like that, right? So, you've never
4 invested in that kind of business?
5 MR. MALLOF: No.
6 CHAIRMAN BRODSKY: Can you
7 quantify for me -- because I see your name.
8 You're right on the top of the signature list
9 of this VA.
10 MR. MALLOF: Yes.
11 CHAIRMAN BRODSKY: So can you
12 quantify for me -- because clearly you were a
13 party to negotiations for all 20 -- I don't
14 know how many points there are in this thing.
15 So, clearly you were a party to the
16 negotiations for all of these things.
17 MR. MALLOF: Yes.
18 CHAIRMAN BRODSKY: So, can you
19 quantify for me the improvement in peace,
20 order and quiet in the neighborhood based on
21 the restrictions placed on Hank's Oyster Bar?
22 MR. MALLOF: Yes. To the extent

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1 that there aren't 100 seats, operating until
2 3:00 a.m. with a large portion of the people
3 either going to their cars or to the Metro --
4 CHAIRMAN BRODSKY: So, there's not
5 100 seats available.
6 MR. MALLOF: -- I can swag those.
7 CHAIRMAN BRODSKY: Well, you can't
8 swag it, because their C of O doesn't let them
9 have 100 seats. So, I'm sure you had a large
10 hand in the Lauriol Plaza analogy, so I'm
11 trying to rein you in a little bit here. So,
12 I want you to be specific about the facts.
13 So, what I'd ask you is can you quantify for
14 me the improvement in peace, order and quiet
15 as a result of this Voluntary Agreement?
16 MR. MALLOF: Well, yes, but it's
17 an opportunity cost sort of analysis. It's in
18 not having a Lauriol Plaza that the Board
19 allowed --
20 CHAIRMAN BRODSKY: Yes, we're not
21 talking about --
22 MR. MALLOF: -- at the corner of

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1 18th and T.
2 CHAIRMAN BRODSKY: Mr. Mallof.
3 Mr. Mallof, this is not Lauriol Plaza. Okay?
4 It's also not Camelot. Right? Why didn't you
5 use that analogy instead?
6 MR. MALLOF: Well, we're saying --
7 CHAIRMAN BRODSKY: So, what you
8 need to do is you need to stay grounded in
9 reality for me.
10 MR. MALLOF: Yes. Yes.
11 CHAIRMAN BRODSKY: And if you
12 can't answer this question, that's cool. I
13 mean, it's a tough question to answer, which
14 is why I asked it. Right? But you're a smart
15 guy, so maybe you'll come up with an answer.
16 But I want you to stay focused on this
17 establishment. You've reduced their seats
18 from -- how many did you get? Eighty your C
19 of O lets you have total?
20 MR. KLINE: Actually, for the
21 record the Board file should reflect that the
22 Certificate of Occupancy is for 65.

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1 MS. LEEDS: Inside.
2 CHAIRMAN BRODSKY: So, your C of O
3 is for 65 seats?
4 MR. KLINE: That's correct.
5 CHAIRMAN BRODSKY: Okay. So,
6 you've got exactly basically what the law lets
7 you?
8 MR. KLINE: Right.
9 CHAIRMAN BRODSKY: Okay. So,
10 which I don't even know why then this thing is
11 even in here in the first place, this one
12 sentence. Because you're right at your C of O,
13 right?
15 CHAIRMAN BRODSKY: Okay. So based
16 on all of the restrictions in here, including
17 restrictions in normal operating hours and all
18 that stuff, quantify for me the improvement in
19 peace, order and quiet as a result of this
20 Voluntary Agreement with Hank's.
21 MR. MALLOF: Well, then I'll give
22 you one, and it's the most telling. And this

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1 is a great question, sir. Thank you. But it
2 is an avoidable cost. It is the difference
3 between closing outside at midnight -- I'm
4 sorry, at 11:00 and 12:00 versus 2:00 a.m. and
5 3:00 a.m. as was applied for by the Applicant;
6 that is, 11:00, 12:00, 1:00, 2:00. That's
7 three hours every night of the week, 20 people
8 outside probably with the Red Bull and vodka
9 stories increasing as you get into the late
10 night hour. So, that is quantifiable. And I
11 can turn 20 seats time any number of martinis.
12 What would you like? That's a number.
13 CHAIRMAN BRODSKY: So, is that
14 three hours every night of the week?
15 MR. MALLOF: Outside, yes. I
16 believe so, sir.
17 CHAIRMAN BRODSKY: And then how
18 about inside?
19 MR. MALLOF: I didn't have a big
20 quibble on the inside. I'm not trying to hold
21 her back. No one's trying to hold her back.
22 She offered those hours.

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1 CHAIRMAN BRODSKY: So if I'm not
2 mistaken then, Mr. Mallof, then what we're
3 talking about here is substantial. You're
4 talking about 1,000 hours a year.
5 MR. MALLOF: Yes.
6 CHAIRMAN BRODSKY: Where you have
7 20 people times some table turn times whatever
8 money they're spending.
9 MR. MALLOF: Outside, absolutely,
10 if that's the math.
11 CHAIRMAN BRODSKY: Did you ever
12 for a moment think about the negative impact
13 of the revenue implications of that on the bar
14 owner?
15 MR. MALLOF: Well, sir --
16 CHAIRMAN BRODSKY: So, what you
17 just said to me is --
19 CHAIRMAN BRODSKY: -- I've just
20 quantified the improvement in peace, order and
21 quiet because I kept them closed for an extra
22 outside 1,000 hours a year.

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1 MR. MALLOF: Yes.
2 CHAIRMAN BRODSKY: At 20 people
3 outside times, I don't know, what you'd say
4 martinis? What do you charge for a martini?
5 MS. LEEDS: Nine dollars.
6 CHAIRMAN BRODSKY: Okay. So now
7 you've got 180, three hours every night times
8 1,000 hours. That's what? I mean, I can't
9 think that fast. What's that, a couple
10 $100,000 in revenue?
11 MR. MALLOF: Well, wait is that --
12 wait.
13 CHAIRMAN BRODSKY: How does that
14 figure into the equation, Mr. Mallof?
15 MR. MALLOF: What are we doing
16 here? Three hours --
17 CHAIRMAN BRODSKY: Well, I just
18 asked you to quantify --
19 MR. MALLOF: Well, let's do it.
20 Well, let's do it, sir. I got my calculator.
21 CHAIRMAN BRODSKY: No, no. I
22 don't need you to do anything for me, Mr.

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1 Mallof. All right? I asked you to quantify
2 for me the improvement in peace, order and
3 quiet and what you pointed me to was the fact
4 that you've restricted these people three
5 hours a night times seven days a week times 20
6 people times the turn times the dollars the
7 people spent. You used martinis, I'm not so
8 sure why.
9 MR. MALLOF: Yes, that's right.
10 CHAIRMAN BRODSKY: Let's say
11 oysters and martinis. So to me what that
12 looks like is you've just quantified the
13 damage that you've done by restricting this
14 Licensee's hours.
15 MR. MALLOF: Well, sir, I want
16 to --
17 CHAIRMAN BRODSKY: So now can you
18 quantify the improvement in peace, order and
19 quiet?
20 MR. MALLOF: Yes.
22 MR. MALLOF: We have taxpayers who

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1 pay beaucoup bucks to this District of
2 Columbia for property taxes and vehicles taxes
3 and everything else for us to live as
4 residents.
5 CHAIRMAN BRODSKY: Right.
6 MR. MALLOF: I would appreciate
7 this Board thanking the residents for living
8 in the District of Columbia and for doing our
9 contribution and that you not have an
10 asymmetric monochromatic view of this being
11 only for businesses.
13 I --
14 MR. MALLOF: We have to have
15 proportion here.
16 CHAIRMAN BRODSKY: Mr. Mallof, I
17 personally invest millions of dollars in the
18 District of Columbia to run my businesses.
20 CHAIRMAN BRODSKY: I employ lots
21 of people.

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1 CHAIRMAN BRODSKY: I rent space.
2 I do a lot of things in the District of
3 Columbia. So your precocious comment about
4 hoping the Board recognizes the value that
5 citizens bring is just that, it's precocious
6 and it's a little bit childlike. So, I would
7 like you to recognize that the people on this
8 Board are citizens of the District of
9 Columbia.
10 MR. MALLOF: I thank you for it.
11 CHAIRMAN BRODSKY: I spend 30
12 percent of my work week on this Board.
14 CHAIRMAN BRODSKY: I have a small
15 business. You know how hard it was for me to
16 do that, Mr. Mallof? Not easy. Okay?
18 CHAIRMAN BRODSKY: So I'm making
19 my contribution. So what I can't seem to find
20 here is any kind of quantification. So you
21 said to this Licensee, look, you guys are
22 going to harm peace, order and quiet and the

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1 way we're going to prevent that is we're going
2 to have you sign this Voluntary Agreement
3 that's going to restrict your hours and that's
4 going to keep things better.
5 So what I'm asking you is to say
6 -- since you were the top level signatory on
7 this thing, right?
8 MR. MALLOF: Yes.
9 CHAIRMAN BRODSKY: You're here
10 representing all these people. So from 2005
11 to 2011 how do you quantify, what's the actual
12 quantification of the improvement in peace,
13 order and quiet as a result of having 1,000 a
14 year times five, of having 6,000 less hours of
15 operation? How do you quantify that?
16 MR. MALLOF: I don't know where
17 you're getting 6,000 hours.
18 CHAIRMAN BRODSKY: Well, you
19 restricted them three hours each night --
20 MR. MALLOF: Three hours time 365
21 days.
22 CHAIRMAN BRODSKY: -- times seven,

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1 so that's 21 hours a week times 52. I mean,
2 you can figure it out.
3 MR. MALLOF: Yes, three times 365
4 is --
5 CHAIRMAN BRODSKY: So my question
6 is how do you quantify it, Mr. Mallof?
7 MR. MALLOF: I just did for you,
8 sir. We just ran the numbers.
9 CHAIRMAN BRODSKY: How do you say
10 that peace, order and quiet has improved as a
11 result of this restriction?
12 MR. MALLOF: Well, you haven't
13 driven away neighbors like I believe the Board
14 drove away at 18th and T. The property values
15 did decrease.
16 CHAIRMAN BRODSKY: I'm going to
17 ask you to just keep focused on just this
18 Licensee. That's all. Not Lauriol Plaza. I
19 don't know where 18th and T -- I don't know
20 what that is, right? But I want you to keep
21 focused on this, because you signed this VA.
22 MR. MALLOF: Yes.

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1 CHAIRMAN BRODSKY: You negotiated
2 this. So quantify it for me, Mr. Mallof.
3 MR. MALLOF: I just did, sir.
4 It's at the very least 1,000 hours a year that
5 aren't on public property. It is public
6 property, not private property. And --
7 CHAIRMAN BRODSKY: Oh, you're
8 referring to the outside there? You're
9 referring to the sidewalk caf‚?
10 MR. MALLOF: All we're quantifying
11 here is 20 seats times 1,000 hours on the
12 public property. The issues are --
13 CHAIRMAN BRODSKY: Oh, I'm talking
14 about the whole place.
15 MR. MALLOF: -- the public
16 impacts.
17 CHAIRMAN BRODSKY: No, you've got
18 the whole place restricted.
19 MR. MALLOF: Well, I'm not
20 quibbling on that.
21 CHAIRMAN BRODSKY: I care. And
22 she cares. People care about --

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1 MR. MALLOF: You're negotiating on
2 her behalf. She hasn't filed that request,
3 sir. I mean, you might as well get down and
4 sit over there.
5 CHAIRMAN BRODSKY: Mr. Mallof, I
6 think your time is done.
7 Thank you, Mr. Hibey.
8 Thank you, sir. We appreciate
9 your comments.
10 MR. MALLOF: My pleasure. Thank
11 you.
12 CHAIRMAN BRODSKY: Mr. Hibey,
13 thank you very much.
14 Don't get up, Mr. Mallof. You
15 still got work to do.
16 MR. MALLOF: Oh, thank you.
17 Sorry.
19 MR. KLINE: Yes, do any of the
20 Board Members --
21 CHAIRMAN BRODSKY: Yes, hang on
22 one second.

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1 Board Members?
2 Well, we asked them if they had
3 any questions. Nobody else had any.
4 MR. KLINE: Okay.
5 CHAIRMAN BRODSKY: So, I'm
6 presuming nobody still does. You guys cool?
9 MR. KLINE: All right. Mr.
10 Mallof, your contention is your concern about
11 the late hours on the patio was I think you
12 said the Red Bull and vodka starts. You ever
13 been in Hank's Oyster Bar?
14 MR. MALLOF: Oh, yes.
15 MR. KLINE: They don't serve Red
16 Bull in that establishment, do they?
17 MR. MALLOF: I'm speaking
18 generally about the outdoor impacts on the
19 entire street.
20 MR. KLINE: All right. So it's
21 your contention that this establishment should
22 be restricted because of what other

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1 establishments do, isn't it?
2 MR. MALLOF: No, Ms. Leeds is the
3 last one in and we negotiated based on
4 threshold over-concentration that already
5 exists there. So we had to negotiate on the
6 basis of the increment, unfortunately, sir,
7 since no one else has consistent rules or regs
8 on public space.
9 MR. KLINE: Have you had
10 difficulty with other establishments in the
11 neighborhood?
12 MR. MALLOF: Oh, over the years
13 many. That's sort of why I'm here, yes.
14 MR. KLINE: Okay. And you can
15 identify which establishments caused the
16 difficulty, correct?
17 MR. MALLOF: Well, that's been
18 well known, I think also to this Board, over
19 the years, yes.
20 MR. KLINE: All right. And have
21 you protested their renewals?
22 MR. MALLOF: Yes.

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1 MR. KLINE: Okay. But in this
2 case you sought to restrict this business' new
3 license without knowing what the effects would
4 be, correct?
5 MR. MALLOF: Well, we had concerns
6 about the incremental effect and we did have
7 good reason to be concerned about any
8 increment when the Board found over-
9 concentration, renewed the moratorium and yet
10 continued to allow expansion of seats and
11 hours, yes.
12 MR. KLINE: Okay.
13 MR. MALLOF: Yes.
14 MR. KLINE: Well, the moratorium
15 relates to licenses, doesn't it?
16 MR. MALLOF: You say so, I guess.
17 MR. KLINE: Do you know? You're
18 involved in the moratorium, correct?
19 MR. MALLOF: The licenses are
20 integrally tied to the hours and the seats
21 involved.
22 MR. KLINE: Mr. Mallof, please.

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1 The moratorium relates to number of licenses
2 in the neighborhood, doesn't it?
3 MR. MALLOF: Yes.
4 MR. KLINE: Okay.
5 MR. MALLOF: I have to take the
6 average license.
7 MR. KLINE: So this was a transfer
8 of an existing license, correct?
9 MR. MALLOF: Yes.
10 MR. KLINE: So the moratorium was
11 completely irrelevant to this proceeding,
12 wasn't it?
13 MR. MALLOF: The existing --
14 MR. KLINE: To Ms. Leeds' license?
15 MR. MALLOF: No, it wasn't. The
16 existing Licensee had only a dozen seats and
17 it was a DR.
18 MR. KLINE: All right. So --
19 MR. MALLOF: This was a CR was
20 requesting seats outside that were significant
21 and inside.
22 MR. KLINE: Okay. But it was not

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1 a new license, correct?
2 MR. MALLOF: Oh, that's correct.
3 MR. KLINE: All right. So it
4 didn't have anything to do with the
5 moratorium, correct?
6 MR. MALLOF: In your eyes. In our
7 eyes the incremental impacts were very much
8 related to the moratorium. We come in and
9 argue peace, order and quiet, but then you
10 want to say that it's not related to the
11 decision of the moratorium.
12 MR. KLINE: In fact --
13 MR. MALLOF: But there are drivers
14 of the impacts. The impacts are the reason
15 for the moratorium.
16 MR. KLINE: In fact the reasons
17 for the restrictions in the Voluntary
18 Agreement was because of prospective fear that
19 this Licensee would disturb the neighborhood,
20 correct?
21 MR. MALLOF: On an incremental
22 basis, yes.

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1 MR. KLINE: All right. And in
2 fact this Licensee hasn't disturbed the
3 neighborhood at all, has it?
4 MR. MALLOF: I can't say that.
5 Mr. Poozesh didn't say that.
6 MR. KLINE: Okay. But you can't
7 say that it has disturbed the neighborhood,
8 can you?
9 MR. MALLOF: I don't want to card
10 Jamie's patrons at 2:00 a.m. I want to stay
11 in bed. Correct.
12 MR. KLINE: Either you can or you
13 can't.
15 MR. KLINE: Can you say --
16 MR. MALLOF: I have not -- yes,
17 that's correct. That's correct.
19 MR. MALLOF: Absolutely.
20 MR. KLINE: Now in terms of what's
21 in this Voluntary Agreement you said that your
22 concern with respect to standing patrons is a

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1 sardine can of people outside in the sidewalk
2 caf‚ area, correct?
3 MR. MALLOF: We would prefer that
4 there not be a CT outside, standing room only.
5 MR. KLINE: Can you please just
6 try to answer my question, Mr. Mallof?
7 MR. MALLOF: Correct. Correct.
10 MR. KLINE: If the same number of
11 people were standing as opposed to sitting in
12 the sidewalk caf‚ area, that would not be a
13 sardine can full of people, would it?
14 MR. MALLOF: It would not be, but
15 that wasn't the request.
16 MR. KLINE: Well, doesn't the
17 Voluntary Agreement restrict people's ability
18 to stand and consume drinks?
19 MR. MALLOF: Yes --
20 MR. KLINE: And --
21 MR. MALLOF: -- that's a dimension
22 that --

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1 MR. KLINE: Mr. Mallof, please.
2 MR. MALLOF: -- the Board does not
3 have as a rule. We negotiated that.
4 MR. KLINE: Mr. Chair, I would ask
5 that the witness be directed to allow me to
6 finish my question.
7 MR. MALLOF: I'm sorry. Forgive
8 me, sir. It's late.
9 MR. KLINE: All right. So, just
10 so I can go back to that question. The
11 Voluntary Agreement restricts standing in the
12 sidewalk caf‚, doesn't it?
13 MR. MALLOF: Yes.
14 MR. KLINE: All right. And that's
15 not really a concern of yours, is it?
16 MR. MALLOF: It's a huge concern
17 of ours.
18 MR. KLINE: Well, is it the number
19 of people or people standing?
20 MR. MALLOF: That Voluntary
21 Agreement ensure 20 sitting and no additional
22 standing.

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1 MR. KLINE: Okay.
2 MR. MALLOF: It's very powerful
3 for public impacts.
4 MR. KLINE: All right. If those
5 20 people are standing, you don't have any
6 issue with that? Is that what I'm hearing?
7 MR. MALLOF: I do, because that's
8 more likely to be a bar than a restaurant.
9 The District does not, as I understand it,
10 want CTs nor do the residents outside. It's
11 hard to hold the plate of food and the drink.
12 MR. KLINE: Mr. Mallof --
13 MR. MALLOF: The seating is a
14 vital -- is fairly important.
15 MR. KLINE: You're aware that a CR
16 Licensee is required to comply with the
17 minimum food service requirements whether
18 people are sitting or standing, aren't you?
19 MR. MALLOF: Perhaps. It sounds
20 like it's been a very weak deal to me.
21 MR. KLINE: So you're not aware of
22 that?

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1 MR. MALLOF: Well, I think it's
2 been troubling for the Board to enforce that.
3 CHAIRMAN BRODSKY: Mr. Mallof, I'd
4 appreciate it if you don't impugn any actions
5 towards the Board for which you have
6 absolutely no information on.
7 MR. MALLOF: The Board does its
8 best job.
9 CHAIRMAN BRODSKY: So if you could
10 keep your comments about the Board to a
11 minimum, or your time is going to super short.
13 MR. MALLOF: I'm sorry, sir.
14 Thank you.
15 MR. KLINE: So if people are
16 standing in the sidewalk caf‚ area consuming
17 food or drinking, it really doesn't affect
18 whether this establishment is a CT or a CR,
19 does it?
20 MR. MALLOF: We simply made it --
21 it doesn't. We simply made it clear that it
22 was 20 with no other exceptions.

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1 MR. KLINE: Now you --
2 MR. MALLOF: That is a
3 clarification that is quite valuable.
4 MR. KLINE: Okay. Now you
5 testified that there haven't been any problems
6 with loitering, trash removal and outside
7 maintenance, correct?
8 MR. MALLOF: Oh, I think
9 there's --
10 MR. KLINE: Yes or no question.
11 MR. MALLOF: I think there have
12 been.
13 MR. KLINE: Am I correct?
14 MR. MALLOF: No, I think there
15 have been trash problems.
16 MR. KLINE: Oh, I think you
17 responded to one of the Board Members'
18 questions that there hadn't been, and I think
19 you said that was because you have a Voluntary
20 Agreement. Wasn't that your testimony?
21 MR. MALLOF: No, we haven't
22 complained. I'm sorry if I'd forgotten it.

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1 We haven't complained, but rumor is there are
2 some trash issues with all those
3 establishments including Hank's.
4 MR. KLINE: Rumor is?
5 MR. MALLOF: Yes. You asked.
6 MR. KLINE: So you don't have any
7 knowledge this is -- your knowledge is of
8 rumors?
9 MR. MALLOF: No, I don't. Yes,
10 sir. I don't scurry around the alley.
11 There's plenty else that is --
12 MR. KLINE: All right. So, are
13 you willing to concede that your testimony was
14 that you haven't had any problems with this
15 establishment related to loitering, trash
16 removal and outside maintenance and you
17 believe that's because of the Voluntary
18 Agreement, which is what you testified to
19 before?
20 MR. MALLOF: Yes.
21 MR. KLINE: Okay. There are other
22 establishments in the neighborhood which have

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1 Voluntary Agreements with which you have had
2 problems related to loitering, trash removal
3 and outside maintenance, aren't there?
4 MR. MALLOF: Yes.
5 MR. KLINE: Okay.
6 MR. MALLOF: The signatories have,
7 yes.
8 MR. KLINE: Okay. So the fact of
9 the matter is whether there's a Voluntary
10 Agreement or not doesn't really determine
11 whether you're going to have problems related
12 to loitering, trash removal and outside
13 maintenance, does it? It's a yes or no
14 question.
15 MR. MALLOF: It does.
16 MR. KLINE: Okay.
17 MR. MALLOF: Yes, it does.
18 MR. KLINE: But you've had
19 problems with people who have Voluntary
20 Agreements related to loitering, trash removal
21 and outside maintenance and there are others
22 who have the same agreements with whom you

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1 haven't had those problems, correct?
2 MR. MALLOF: Depends. Yes.
4 MR. MALLOF: Yes.
5 MR. KLINE: And there are some
6 people that don't have agreements that you
7 don't have any problems with, correct?
8 MR. MALLOF: That's correct.
9 MR. KLINE: All right. So I think
10 we can agree; tell me if you do, that the
11 existence of the Voluntary Agreement is really
12 not determinative as to whether you have
13 problems with a particular establishment, is
14 it?
15 MR. MALLOF: No.
16 MR. KLINE: Okay. Thank you.
17 MR. MALLOF: No, not at all.
18 MR. KLINE: All right. Now, in
19 terms of this establishment having seats out
20 in March, you don't have any problem with
21 that, do you?
22 MR. MALLOF: No.

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1 MR. KLINE: Okay. And you've
2 already said you dont' care what logos are on
3 the umbrellas, correct?
4 MR. MALLOF: Other signatories did
5 for the look of the neighborhood, but no I
6 don't.
7 MR. KLINE: All right. And coming
8 back to this issue of standing, your issue is
9 the capacity in the outside area, correct?
10 MR. MALLOF: That was a yes.
11 MR. KLINE: All right. In terms
12 of whether people are sitting or standing,
13 that's not really an issue, is it?
14 MR. MALLOF: No, it is an issue.
15 I just said it was an issue. We don't want
16 people standing because that's more likely to
17 be CT-like activity, because how are you
18 supposed to hold the plate?
19 MR. KLINE: Okay.
20 MR. MALLOF: The issue is the
21 likelihood of impacts based on the format of
22 the menu and the restaurant. Yes, we would

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1 prefer they eat outside and if they want to
2 drink, drink inside at the bar. Terrific. We
3 have 100 percent residences --
4 MR. KLINE: There's no question
5 pending.
7 MR. KLINE: Thank you, Mr. Mallof.
9 MR. KLINE: Now is your contention
10 that had you not been able to negotiate this
11 Voluntary Agreement that residents would flee
12 from your neighborhood and sell their homes?
13 MR. MALLOF: I'm simply saying
14 that at a threshold there will be impacts,
15 yes.
16 MR. KLINE: Okay.
17 MR. MALLOF: People have to sleep.
18 MR. KLINE: And your contention is
19 in the absence of this Voluntary Agreement
20 that real property values would decline. Is
21 that your testimony?
22 MR. MALLOF: It could very well.

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1 Oh, yes.
2 MR. KLINE: Well, could very well.
3 Will it or won't it?
4 MR. MALLOF: You had a gentleman
5 from the Cairo who doesn't even live in --
6 MR. KLINE: Mr. Mallof, please
7 answer my question.
8 MR. MALLOF: -- the front of the
9 building present expert testimony.
11 you --
12 MR. MALLOF: I believe the answer
13 is yes.
14 CHAIRMAN BRODSKY: -- are
15 instructed to answer the question that's asked
16 of you.
17 MR. MALLOF: Yes.
18 CHAIRMAN BRODSKY: And not
19 anything else.
20 MR. KLINE: I don't have anything
21 further. Thank you.

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1 MEMBER JONES: Mr. Chairman?
2 CHAIRMAN BRODSKY: Yes, Mr. Jones?
3 MEMBER JONES: May I just follow
4 up?
5 CHAIRMAN BRODSKY: Glad to see
6 you're alive over there.
8 Chairman.
9 There's been a lot of questions
10 about the outdoor area and the concern about
11 standing versus sitting.
13 MEMBER JONES: And I'm actually I
14 guess trying to understand rationally what
15 you're saying, and I'm really trying to
16 understand rationally what you're saying.
17 MR. MALLOF: Yes.
18 MEMBER JONES: So how would you go
19 about enforcing that aspect of your negotiated
21 MR. MALLOF: Well, it's the same
22 challenge of enforcement that any citizen has

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1 regarding anything around here. You've got to
2 call the inspector and have something written
3 up. It's very tedious and no one much does
4 it. Part of the process, sir, is that there's
5 faith in executing the contract, good will
6 between the licensee and the residents. The
7 residents don't want to run around and make
8 phone calls.
9 MEMBER JONES: So if I understand
10 the way it's written; and maybe I don't quite
11 understand the way it's written, but if I am
12 a patron in the outdoor area and I am standing
13 and I'm talking to say somebody that's seated
14 at the table, would that be considered a
15 violation of the VA?
16 MR. MALLOF: Yes. I guess maybe
17 technically, yes. And that someone has to
18 call and seem like a fuddy-duddy, yes. We
19 don't want to do that.
20 MEMBER JONES: You don't want to
21 do that, but that's basically what you're
22 saying you want us to enforce as the Board,

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1 right?
2 MR. MALLOF: No, I want Ms. Leeds
3 and other licensees to in good faith sign up
4 for things that we can trust as neighbors
5 because they signed up for it they'll follow.
6 So, that language has value even if we don't
7 call you and ask the inspector to come out.
8 We don't want to do that. But absent your
9 regs, sir, that's the best thing we have, to
10 rely on good faith between other neighbors.
12 MR. MALLOF: And that's a very
13 important sentence.
14 MEMBER JONES: So your intent
15 isn't for us to enforce it to the letter of
16 the law. There's a general try to do good,
17 try and do what we ask type of approach?
18 MR. MALLOF: Everything has a
19 cost. We wouldn't want you to incur huge
20 costs of enforcement, but the possibility of
21 there being enforcement should ensure good
22 faith between the Licensee and the neighbors.

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1 MEMBER JONES: Okay. And would
2 that same general approach apply to all of the
3 statements that you have in your VA?
4 MR. MALLOF: Many of the 19
5 dimensions, yes. Yes.
7 MR. MALLOF: Better to codify than
8 not codify.
9 MEMBER JONES: Are you okay?
10 MR. MALLOF: I'm --
11 MEMBER JONES: You seem a little
12 agitated.
13 MR. MALLOF: I'm disappointed,
14 yes.
15 MEMBER JONES: Oh, okay.
16 MR. MALLOF: So, anyway.
17 MEMBER JONES: All right. Thank
18 you, Mr. Chairman.
20 sir.
21 Any other questions from the
22 Board? So, I'm going to have just one more

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1 question. Any other Board Members? Everybody
2 cool?
4 CHAIRMAN BRODSKY: The one thing
5 that concerns me about this, Mr. Mallof, these
6 VAs, that there seem to be, what do you call
7 them, dimensions --
8 MR. MALLOF: Yes.
9 CHAIRMAN BRODSKY: -- So, I'll
10 just pick one; call it dimension 6.6, that
11 require -- and we talk about this all the time
12 behind closed doors, and I'm probably one of
13 the loudest ones to talk about this, but where
14 in Voluntary Agreements it requires the Agency
15 to monitor and be the police sort of of things
16 that are not in our jurisdiction. So for
17 example, right now if somebody has a trash
18 issue in front of their establishment, they
19 don't call us. Right? I guess they've called
20 DDoT. Who's responsible for trash? Like, I
21 don't even know. Like if you were a billiard
22 hall and you didn't have a liquor license and

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1 you overflowed your trash dumpster with old
2 chicken wings and rats got all over it and
3 caused a blight in the neighborhood, who would
4 you call?
5 MR. MALLOF: Chicken wings? If
6 you --
7 CHAIRMAN BRODSKY: Trash.
8 MR. MALLOF: Yes. I think DPW has
9 ticket writers, yes.
10 CHAIRMAN BRODSKY: Yes, so you'd
11 call like the people responsible for trash?
12 MR. MALLOF: Well, I know that,
13 but the average neighbor doesn't, but yes.
14 Yes. Yes.
15 CHAIRMAN BRODSKY: Well, I'm not
16 talking about the average neighbor.
17 MR. MALLOF: Yes.
18 CHAIRMAN BRODSKY: I'm asking you.
19 I'm asking you. Okay.
20 So if there was loitering in front
21 of a billiard hall and a bunch of noisy kids
22 were loitering about, who would the neighbor

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1 call?
2 MR. MALLOF: MPD.
3 CHAIRMAN BRODSKY: So what
4 concerns me about this is the apparent
5 expansion of ABRA's jurisdiction. I think
6 it's kind of troubling to us that we're now as
7 a result of these VAs being required to figure
8 out what a neat black wrought iron tree guard
9 should look like. Because if not, we're
10 responsible for it. Right? It's in our VA,
11 so if somehow they violate that -- so if you
12 came to us, Mr. Mallof, and said holy cow,
13 man, Jamie, she put a white wrought iron fence
14 around her tree box. And you'd come to us and
15 you'd say it's supposed to black. You know,
16 we want you to find her in violation of her
17 VA. So, what I'm trying to figure out is how
18 does stuff that's not the responsibility of
19 ABRA's jurisdiction land in a VA?
20 MR. MALLOF: It's a condition of
21 -- it's a privilege of the license and these
22 are reasonable things for the neighbors to ask

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1 that --
2 CHAIRMAN BRODSKY: Well, you think
3 they're reasonable.
4 MR. MALLOF: Well, if I may say,
5 on loitering, the likelihood of it being
6 related to ABC could be significant, just as
7 much as it couldn't be.
8 CHAIRMAN BRODSKY: Well, how about
9 a black wrought iron tree guard?
10 MR. MALLOF: Well --
11 CHAIRMAN BRODSKY: Like I know I'm
12 nitpicking here, but what I'm trying to figure
13 out is -- because I talk about this with the
14 Board all the time --
15 MR. MALLOF: Sure.
16 CHAIRMAN BRODSKY: -- which is I
17 don't want to be the black wrought iron
18 police.
19 MR. MALLOF: Well, I don't --
20 CHAIRMAN BRODSKY: Nor do I want
21 to be the loitering police or the trash
22 police.

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1 MR. MALLOF: No, I --
2 CHAIRMAN BRODSKY: I got a lot of
3 responsibility here as it is.
4 MR. MALLOF: I think you're right,
5 yes.
6 CHAIRMAN BRODSKY: So we're just
7 trying to figure out how your 19 dimensions of
8 compatibility found their way into this thing,
9 when all I can see here that's within ABRA's
10 purview is two or three.
11 MR. MALLOF: I don't think so,
12 sir.
13 CHAIRMAN BRODSKY: Well, I'm
14 looking at, you know, the hours. That's kind
15 of in our bailiwick. I'm looking at noise,
16 music -- well, I'm looking at dancing. That's
17 kind of in our bailiwick. But I'm just trying
18 to figure out how these things keep growing in
19 size and stature. You got any thoughts on
20 that?
21 MR. MALLOF: Well, forgive me. We
22 didn't pass out the sheet, but last call on

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1 public space, that's not a part of your rules.
2 I think you've got last call for interior, not
3 on public space.
4 CHAIRMAN BRODSKY: What's last
5 call mean?
6 MR. MALLOF: Last call on public
7 space is very important.
8 CHAIRMAN BRODSKY: What does last
9 call mean?
10 MR. MALLOF: Thirty minutes before
11 closing of the patio, the public space patio.
12 That's in there. Hard stop on clearing the
13 public space area. A hard stop time. That's
14 very reasonable.
16 MR. MALLOF: Windows must be shut
17 at 9:00 p.m. That's very reasonable.
18 CHAIRMAN BRODSKY: You're not
19 answering my question, Mr. Mallof.
20 MR. MALLOF: You're really good at
21 that.
22 CHAIRMAN BRODSKY: So I'm going to

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1 rein you in again. So what I'm asking you is
2 how does stuff that's outside of ABRA's
3 jurisdiction -- why do you think it's
4 important to stick it in a VA?
5 MR. MALLOF: I'm not here to
6 defend a black wrought iron tree box.
7 CHAIRMAN BRODSKY: You know, Mr.
8 Mallof, one of the things you do really well
9 is avoid people's questions.
11 CHAIRMAN BRODSKY: But I'm going
12 to stick it to you still a little bit more
13 until I get an answer.
14 MR. MALLOF: Please, sir.
15 CHAIRMAN BRODSKY: Because, you
16 know, you're part of the process. How does
17 something that's not part of ABRA's
18 jurisdiction wind up in a VA? And I'll give
19 you a specific example, so this way you can't
20 obtusely pontificate on me. So 6.3, right?
21 MR. MALLOF: Yes.
22 CHAIRMAN BRODSKY: Regular trash

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1 removal. 6.4, deposit trash and garbage in
2 run-proof dumpsters. The last time I checked
3 ABRA regs, we don't have any jurisdiction over
4 that. So how does stuff that's not in our
5 jurisdiction end up in a VA?
6 MR. MALLOF: That's an open-ended
7 question? May I answer? I'm sorry, it's been
8 a long day.
9 CHAIRMAN BRODSKY: Well, I asked
10 you a question. I'm expecting an answer.
11 MR. MALLOF: Okay.
12 CHAIRMAN BRODSKY: But I'd like
13 you to kind of keep it under four hours, if
14 you could.
15 MR. MALLOF: Yes.
16 CHAIRMAN BRODSKY: Because we got
17 to go soon.
18 MR. MALLOF: The licensing is a
19 privilege.
21 MR. MALLOF: And it generates
22 enormous positive and negative potential

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1 impacts. And as you tried to quantify I think
2 pretty well some additional revenue for the
3 District. It is not unreasonable to ask that
4 the other things that are not sort of
5 synchronous and congruent like DDoT, DPW,
6 DCRA, that they be made a little bit more
7 synchronous to be a condition of the license.
8 That is not unreasonable.
9 CHAIRMAN BRODSKY: But you didn't
10 answer the question, which is why does it end
11 up on ABRA's plate? You know, why --
12 MR. MALLOF: Because this is the
13 greatest privilege.
14 CHAIRMAN BRODSKY: Why --
15 MR. MALLOF: This is the greatest
16 privilege and the greatest revenue producer
17 and the greatest impact potential negative
18 generator. It is a fishing license that could
19 over-fish a stream.
20 CHAIRMAN BRODSKY: So basically
21 what you're saying is because it's the most
22 important thing to the Licensee, you can force

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1 them into accepting conditions of --
2 MR. MALLOF: I didn't say that.
3 CHAIRMAN BRODSKY: -- of a
4 Voluntary Agreement that -- well, I'm just
5 trying to figure out how something that's not
6 in our purview gets into a license agreement.
7 MR. MALLOF: It seems to be very
8 important to the District of Columbia. Okay?
9 CHAIRMAN BRODSKY: We get that a
10 lot in the future. Thanks, Mr. Mallof.
11 MR. MALLOF: Okay. Thank you.
13 questions? Gentlemen?
16 MR. KLINE: Just one.
17 CHAIRMAN BRODSKY: Mr. Hibey? Oh,
18 Mr. Kline?
19 MR. KLINE: Mr. Mallof, isn't it
20 you that asked for the neat black wrought iron
21 tree guard in the front public space tree box?
22 MR. MALLOF: I don't recall. I

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1 believe that was on our wish list, yes.
2 MR. KLINE: Okay. Thanks.
3 MR. MALLOF: Indeed. Indeed.
4 CHAIRMAN BRODSKY: Mr. Hibey, you
5 got anything you want to add to this witness'
6 plate?
7 MR. HIBEY: No.
9 Mallof.
10 MR. MALLOF: I want to thank
11 Jamie.
12 CHAIRMAN BRODSKY: Have a good
13 day. Thank you, Mr. Mallof.
14 Any other witnesses, Mr. Hibey?
15 That was it, right? That was your fourth?
16 MR. HIBEY: I think one other
17 witness wants to testify.
18 MR. KLINE: I would ask if Mr.
19 Hibey would like to call --
20 MR. HIBEY: Could I have like a
21 minute or two?
22 CHAIRMAN BRODSKY: A quick minute,

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1 sure. We're off the record.
2 (Whereupon, at 6:06 p.m. off the
3 record until 6:10 p.m.)
4 CHAIRMAN BRODSKY: We're back on
5 the record.
6 Mr. Hibey, you got your surprise
7 witness ready?
8 MR. HIBEY: Surprise witness is a
9 dismissed Protestant, Robin Diener from DCCA.
11 MS. DIENER: Hello.
13 right hand for me. Do you affirm the
14 testimony you'll give is the truth, the whole
15 truth and nothing but the truth?
16 MS. DIENER: Yes, I do.
18 much.
19 Your witness, Mr. Hibey.
20 MR. HIBEY: Please state your name
21 for the record. Please state your name.
22 MS. DIENER: My name? Oh. My

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1 name is Robin Diener.
2 MR. HIBEY: Where do you live?
3 MS. DIENER: I live at 1612
4 Corcoran Street.
5 MR. HIBEY: And are you involved
6 with the Dupont Circle Citizens Association?
7 MS. DIENER: I am. I'm president
8 currently for this term, this one-year term.
9 MR. HIBEY: Okay.
10 MS. DIENER: But I also live
11 within a block of Hank's Oyster Bar.
12 MR. HIBEY: Okay. Do you oppose
13 termination of the Voluntary Agreement in this
14 case?
15 MS. DIENER: We do oppose
16 termination of the Voluntary Agreement in this
17 case, yes.
18 CHAIRMAN BRODSKY: Ms. Diener, you
19 used the term "we" as opposed to "I."
20 MS. DIENER: Okay. Well --
21 CHAIRMAN BRODSKY: So are you
22 speaking for you or are you speaking for some

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1 other group?
2 MS. DIENER: I'm actually speaking
3 for the Dupont Circle Citizens Association.
4 If you don't want me to speak on their behalf,
5 I'll speak on behalf of myself --
6 CHAIRMAN BRODSKY: Well, I'm not
7 asking that, because I'm not so sure --
8 MS. DIENER: -- as well as a
9 neighbor.
10 CHAIRMAN BRODSKY: I'm just asking
11 you who you're speaking for so that we have it
12 on the record --
14 CHAIRMAN BRODSKY: -- that you're
15 in a representative capacity of the Dupont
16 Circle Citizens Association.
18 CHAIRMAN BRODSKY: I just want to
19 make sure --
20 MS. DIENER: In that case may I
21 give you just a written statement for the
22 record for you to have?

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1 CHAIRMAN BRODSKY: Yes, you can,
2 on the way out.
3 MS. DIENER: Okay. Thank you.
4 Can I represent both if I'm clear about which
5 I'm speaking to?
6 CHAIRMAN BRODSKY: I don't think I
7 have a particular problem. But, Mr. Kline, do
8 you have an objection to her representing the
9 DCCA as a witness in this?
10 MR. KLINE: If she's authorized.
11 I mean, as I said before, we're in a fact
12 finding hearing, so what we're here to hear is
13 evidence, not opinions. This is not a zoning
14 hearing where people get up and make
15 statements. It's an evidentiary hearing. So,
16 I'm not sure there's any distinction about
17 what her knowledge is either as a DCCA
18 representative or on her own behalf. Her
19 knowledge is --
20 CHAIRMAN BRODSKY: As long as
21 she's not speaking -- okay. If you're cool
22 with it, then I'm cool with it. Just want to

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1 make sure.
2 Okay. Go ahead, Ms. Diener.
3 MR. HIBEY: Okay. You said that
4 you oppose termination of the Voluntary
5 Agreement?
6 MS. DIENER: We do.
7 MR. HIBEY: Okay. And you said
8 we.
9 MS. DIENER: Yes.
10 MR. HIBEY: Why does the Dupont
11 Circle Citizens Association oppose termination
12 of the Voluntary Agreement?
13 MS. DIENER: We oppose termination
14 of Voluntary Agreements in principle. And in
15 this case actually it's our fear that Jamie's
16 excellent Hank's Oyster Bar, which has proven
17 to be very well managed and operated, is being
18 used as a little bit of an excuse to get rid
19 of a VA that in fact is not needed, but will
20 then result in other VAs that are needed being
21 much more easily terminated. So I have no way
22 to prove that, but that's what we're afraid

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1 of.
2 MR. HIBEY: Do you think that
4 adversely impact the neighborhood?
5 MS. DIENER: I do for the reason
6 that other establishments may then have --
7 other establishments that don't behave as
8 well, that aren't as well managed, that don't
9 abide by rules and regulations as well will
10 then be without Voluntary Agreements because
11 they'll be rescinded or -- rescinded is not
12 the right term -- terminated more easily, so
13 there will be more impacts on the
14 neighborhood, not necessarily from Ms. Leeds'
15 establishment, but from others who will
16 benefit from her good operation. Why should
17 they benefit from that, and then negatively
18 impact potentially others in the neighborhood?
19 I think that we worked for a long
20 time in our neighborhood to get a good balance
21 of businesses and restaurants. We had the
22 moratorium come in and that was hard to deal

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1 with at first, but over time things have
2 stabilized. And both the moratorium and the
3 Voluntary Agreements I think have resulted in
4 frankly what everyone's testified to, a
5 wonderful well-balanced vibrant neighborhood.
7 MR. KLINE: Good evening, Ms.
8 Diener.
9 MS. DIENER: Good evening, Mr.
10 Kline.
11 MR. KLINE: So if I understand
12 your testimony, you're not concerned with
13 Jamie terminating her VA, you're concerned
14 with other people who might seek to do the
15 same. Is that correct?
16 MS. DIENER: Right.
17 MR. KLINE: All right. And you
18 originally wrote a letter to the Board on June
19 28th concerning this Voluntary Agreement,
20 correct?
21 MS. DIENER: Yes.
22 MR. KLINE: And you wrote that

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1 letter on behalf of the DCCA, correct?
2 MS. DIENER: Yes. Yes.
3 MR. KLINE: Is that correct?
4 MS. DIENER: Yes.
5 MR. KLINE: Isn't it a fact that
6 at that point you were not authorized to write
7 such a letter on behalf of DCCA?
8 MR. HIBEY: Objection.
9 CHAIRMAN BRODSKY: For what
10 purpose?
11 MR. HIBEY: This has no relevance.
13 MR. KLINE: She's testified she's
14 a representative. I think certainly her
15 credibility as a representative is at issue.
16 They put it at issue.
17 CHAIRMAN BRODSKY: Mr. Hibey,
18 because I'm inclined to believe him.
19 MR. HIBEY: She's been dismissed.
20 The letter has nothing to do with this. She's
21 testified today that she's authorized. She
22 has a letter on letterhead from the Dupont

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1 Circle Citizens Association. If you want to
2 ask her if she was unauthorized then, what
3 does that have to do with this?
4 CHAIRMAN BRODSKY: Do you have a
5 letter from Ms. Diener that authorizes her to
6 speak on behalf of the DCCA on this?
7 MR. HIBEY: The letter's on
8 letterhead and she's told me she's authorized.
9 MS. DIENER: For testimony.
11 MR. KLINE: Is the objection
12 sustained or overruled?
13 CHAIRMAN BRODSKY: I mean, what do
14 you think about that?
15 MR. KLINE: Well, I think the
16 point is this: She's been proffered as a
17 witness testifying on behalf of DCCA. My
18 question goes to whether she from time to time
19 perhaps exceeds her authority before the Board
20 to act on behalf of DCCA. It goes to
21 impeachment.
22 CHAIRMAN BRODSKY: I'm not so sure

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1 why you didn't say this to me when I first
2 asked you earlier on whether or not you had a
3 problem with her speaking on behalf of DCCA.
4 I guess at that point it didn't matter.
5 MR. KLINE: Because then you
6 wouldn't let me ask this question. You made
7 it relevant.
8 CHAIRMAN BRODSKY: Now we're back
9 where we started. Holy cannolis.
10 Well, look, I raised it first. I
11 think it's a very fair question, you know? I
12 mean, Ms. Diener, if you're up there speaking
13 as an official representative of a community
14 group that has legal authority and weight and
15 gravitas, that's different than you speaking
16 as Robin Diener, concerned citizen. So, if
17 you could produce something for me that says
18 that you're speaking on behalf of the DCCA as
19 its authorized representative to speak for it
20 in this capacity, I'm all ears and eyes. I'll
21 take a look at whatever you got for me. If
22 not, then I'm inclined to agree with Mr. Kline

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1 and ask that you speak as you and not as a
2 representative of DCCA.
3 MS. DIENER: Well, I don't know
4 what I could produce. Would it be an
5 instruction by the Board for me to represent
6 them?
7 CHAIRMAN BRODSKY: Yes, that's a
8 good start.
9 MS. DIENER: Okay. Yes. That's
10 not how we operate, so I don't have that. And
11 the letter, if you want me to answer, on June
12 28th, that was sent, was representing the
13 historical position --
15 MR. KLINE: (Off microphone.)
16 CHAIRMAN BRODSKY: Yes. Hang on.
17 Hang on, Ms. Diener. Hang on.
18 MS. DIENER: -- of DCCA.
19 CHAIRMAN BRODSKY: Ms. Diener, no,
20 no, no, no, no.
21 MS. DIENER: I'm sorry.
22 CHAIRMAN BRODSKY: Don't go there.

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1 MS. DIENER: Okay.
2 CHAIRMAN BRODSKY: Don't go there
3 yet.
5 MR. HIBEY: If I could ask the
6 witness a couple questions. When he said he
7 had no problem with the authority, I didn't
8 get into that, but I can ask her a couple
9 questions to try to lay the foundation if she
10 has the authority.
11 CHAIRMAN BRODSKY: Sure. Yes, I'm
12 all eyes and ears.
13 MR. KLINE: Mr. Chairman, he's
14 finished. I mean --
15 MR. HIBEY: That's because you
16 didn't raise this objection. You said fine
17 she could testify.
18 MR. KLINE: I wasn't raising an
19 objection. I'm now questioning her. I'm
20 cross-examining her. She's been tendered as
21 a witness who has authority and I'm now cross-
22 examining on that authority, which I think is

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1 my right. To say, oh, sorry, we missed it.
2 We didn't get to it. Give us another chance.
3 MR. HIBEY: I didn't miss
4 anything.
5 CHAIRMAN BRODSKY: Okay. So you
6 can continue to question her on her authority.
7 MR. KLINE: All right. So the
8 fact of the matter is when you wrote the
9 letter on June 28th you didn't have authority
10 to write that letter, did you?
11 MS. DIENER: I don't know what you
12 mean by that. I am the official
13 representative, the president of the Dupont
14 Circle Citizens Association and its
15 spokesperson. I represented in that letter
16 what I knew to be the historical position of
17 the DCCA on VAs.
18 MR. KLINE: All right. You
19 intended that letter as a protest letter,
20 correct?
21 MS. DIENER: I did not understand
22 that protest was the only avenue open to us.

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1 You had sent us a letter to amend or terminate
2 and I thought we could agree to amend --
3 MR. KLINE: All right. Well, let
4 me ask it another way.
5 MS. DIENER: -- so I didn't see it
6 as a protest, but I understand now in
7 retrospect that that in fact is what it is.
8 MR. KLINE: Okay. Let me ask it
9 another way.
10 MS. DIENER: Yes.
11 MR. KLINE: You intended that
12 letter as opening the door for DCCA to
13 participate in the process, correct?
14 MS. DIENER: Yes.
15 MR. KLINE: All right. At that
16 point there had been no meeting of DCCA
17 concerning this issue, had there been?
18 MS. DIENER: There had been
19 discussions of it, yes.
20 MR. KLINE: Isn't it a fact that
21 this wasn't taken up until a meeting on July
22 22nd of 2010?

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1 MS. DIENER: It was taken up
2 formally for a vote, yes.
3 MR. KLINE: And that was the first
4 time it was taken up formally for a vote,
5 correct?
6 MS. DIENER: No, it was not.
7 First time taken up formally for a vote, yes.
8 MR. KLINE: All right. So when
9 you wrote the letter on the 28th you really
10 didn't have authority from the organization,
11 did you?
12 MS. DIENER: I believed that I had
13 the authority.
14 MR. KLINE: Dupont Circle Citizens
15 Association is an incorporated citizens
16 association, correct?
17 MS. DIENER: Yes.
18 MR. KLINE: You're not the czar of
19 it, are you?
20 MS. DIENER: No.
21 MR. KLINE: You act pursuant to
22 the direction of the members and/or board of

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1 the directors of the association, correct?
2 MS. DIENER: Yes. We work
3 together, right.
4 MR. KLINE: And in the absence of
5 any decision by those bodies, you don't have
6 authority to act, do you?
7 CHAIRMAN BRODSKY: Let's be a
8 little bit more clear, Mr. Kline.
9 MS. DIENER: I don't know, because
10 it's not how we operate.
11 CHAIRMAN BRODSKY: Let's ask the
12 question a little more clearly.
14 CHAIRMAN BRODSKY: So you do have
15 authority to act, right? You can pick up the
16 phone if it rings, right? So you can do some
17 things?
18 MS. DIENER: Yes.
19 CHAIRMAN BRODSKY: But the
20 question is in order for the DCCA to get
21 engaged in a protest process, to formally
22 engage, I'm assuming for the moment that you

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1 need to take a vote and the board has to be
2 behind it and then you can move forward as an
3 organization, correct? Isn't that how it
4 normally works for every other community group
5 that I've ever come in contact with?
6 MS. DIENER: We don't have a set
7 of procedures like that.
8 CHAIRMAN BRODSKY: So then what
9 stops you from going rogue?
10 MS. DIENER: Well, nothing. And
11 that happens a lot actually with all kinds of
12 groups.
13 CHAIRMAN BRODSKY: No further
14 questions.
15 MS. DIENER: The presidents
16 believe that they are the spokespeople and
17 they make statements to reporters all the time
18 and to others in the community all the time.
19 CHAIRMAN BRODSKY: All right, Ms.
20 Diener. That's cool.
21 MS. DIENER: But subsequently the
22 board agrees that they supported a position.

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1 CHAIRMAN BRODSKY: I understand.
2 You have any other questions, Mr. Kline?
3 MEMBER GANDHI: Thanks. I really
4 -- oh, I'm sorry.
5 CHAIRMAN BRODSKY: Mr. Gandhi, go
6 ahead.
7 MEMBER GANDHI: Thank you. I just
8 really want to focus in on the question that
9 counsel asked you first. Do you have any
10 issue with the termination of this Voluntary
11 Agreement? I'm not talking about the domino
12 effect later, but this particular Voluntary
13 Agreement with Hank's.
14 MS. DIENER: Insofar as it is a
15 Voluntary Agreement --
17 MS. DIENER: -- which we believe
18 are useful and helpful and do not -- to my
19 knowledge Jamie has not --
20 MEMBER GANDHI: I understand you
21 believe in Voluntary Agreements.
22 MS. DIENER: -- stated that it

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1 harms her.
2 MEMBER GANDHI: I understand you
3 believe in Voluntary Agreement. I understand
4 that and I respect that. I really do. But as
5 it relates to this one, she doesn't want it
6 anymore. She petitioned the Board to
7 terminate it. So that's all I'm talking
8 about.
9 MS. DIENER: This is not a
10 commentary on her performance or her
11 establishment. But yes we would not want it
12 to be terminated because we believe it should
13 be in place. It's useful for the community.
14 It's a form of call it insurance or good
15 graciousness --
16 MEMBER GANDHI: But I thought I
17 heard you before --
18 MS. DIENER: -- on the part of an
19 operator, that they want to meet the neighbors
20 halfway or more to deal with their concerns.
21 MEMBER GANDHI: But I thought I
22 heard just a few minutes before that you did

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1 say that it's not this establishment, but it's
2 other establishments that may be acting not in
3 a right behavior or badly.
4 MS. DIENER: But that we need to
5 therefore keep all the Voluntary Agreements.
6 MEMBER GANDHI: Keep those
7 Voluntary Agreements, but how about this
8 establishment? I mean, I heard one thing
9 earlier --
11 MEMBER GANDHI: -- and now you're
12 telling me something else a little bit
13 different. So, I just want to make sure that
14 I understand your position.
15 MS. DIENER: I am perhaps not
16 being clear.
17 MEMBER GANDHI: I'm sorry?
18 MS. DIENER: I am perhaps not
19 being clear.
21 MS. DIENER: Forgive me.
22 MEMBER GANDHI: No, maybe it was

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1 me.
2 MS. DIENER: I'll try one more
3 thing in case it helps. Jamie said to me,
4 well, you know, I would behave just as I do
5 now if I did not have a Voluntary Agreement.
6 And so my response is then why not have the
7 Voluntary Agreement if it contributes to well
8 being in the community and the neighbors
9 appreciate it and it helps you to work
10 together?
11 MEMBER GANDHI: What provision in
12 the Voluntary Agreement, ma'am?
13 MS. DIENER: What --
14 MEMBER GANDHI: Is there any
15 specific provision that you believe protects
16 the community per se, quote/unquote?
17 MS. DIENER: It's the ability to
18 negotiate these things.
19 MEMBER GANDHI: So you like to
20 have that power? You like to have the power
21 of negotiating with the VA?
22 MS. DIENER: I think that the

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1 neighborhood feels reassured by having some --
2 I don't want to use the word "leverage," but
3 ability to come to the table to discuss these
4 things.
5 MEMBER GANDHI: And that only
6 happens if you have the Voluntary Agreement?
7 MS. DIENER: Well, not for sure.
8 A great operator may be perfectly available
9 every time we call to meet with you and
10 resolve problems, but --
11 MEMBER GANDHI: Okay. Last
12 question. There was a lot of conversation
13 about the outdoor deck and the use of the
14 outdoor deck.
15 MS. DIENER: The patio, right?
16 MEMBER GANDHI: The patio. Sorry.
17 Late night hours. Can you give me your
18 opinion or DCCA's -- give me your opinion --
19 MS. DIENER: Sure.
20 MEMBER GANDHI: -- on the lateness
21 of the outdoor patio.
22 MS. DIENER: My opinion as to?

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1 MEMBER GANDHI: Hours of
2 operation.
3 MS. DIENER: Well, I think the
4 Dupont Circle ANC's guidelines are
5 appropriate.
6 MEMBER GANDHI: I didn't ask about
7 the ANC. I just asked about you.
8 MS. DIENER: No, but those
9 guidelines are the ones that --
10 MEMBER GANDHI: I don't even know
11 what those guidelines are, to be honest with
12 you. So I'm just asking on your specific --
13 MS. DIENER: I think the outdoor
14 hours absolutely need to be restricted.
15 MEMBER GANDHI: To what?
16 MS. DIENER: To what the
17 neighborhood will bear. But it may be -- to
18 the ANC guidelines.
20 MS. DIENER: The ANC has
21 guidelines on outdoor.

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1 MS. DIENER: I'm sorry. I don't
2 know them off the top of my head.
3 MEMBER GANDHI: I don't know. I
4 didn't know they had guidelines.
6 Chairman.
8 sir.
9 MEMBER JONES: Question, ma'am.
10 MS. DIENER: Yes?
11 MEMBER JONES: So just to make
12 sure I'm clear, right now you're speaking on
13 behalf of the organization, representing the
14 DCCA?
15 MS. DIENER: Yes.
16 MEMBER JONES: Okay. The
17 Voluntary Agreement has certain terms in it
18 right now that DCCA is supportive of?
19 MS. DIENER: Yes.
20 MEMBER JONES: Okay. Would you be
21 opposed to altering those terms?
22 MS. DIENER: Absolutely not.

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2 MS. DIENER: We asked to be part.
4 MS. DIENER: And so we look
5 forward to amending the agreement with Hank's.
6 MEMBER JONES: Okay. As far as
7 your organization is concerned, let's start
8 with the most salient, most important thing to
9 you about that modification to the Voluntary
10 Agreement that you feel will protect peace,
11 order and quiet, property values or what have
12 you. Is it operating hours? Is it space?
13 Number of seats? Is it standing on the
14 outdoor area? What is the most important
15 thing to you and your organization?
16 MS. DIENER: Within the agreement
17 as it stands?
18 MEMBER JONES: Within what you
19 would be comfortable with accepting in the
20 amended agreement that you spoke of you would
21 be interested in working out with. And I
22 don't want to get into negotiations, where

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1 everything's going to be. I just want to
2 understand what the most important point to
3 you is.
4 MS. DIENER: The most important --
5 well, you're not going to like this answer.
6 The most important point is to be able to
7 negotiate. So, for us --
8 MEMBER JONES: No, that's not what
9 I'm asking.
10 MS. DIENER: Yes.
11 MEMBER JONES: I want to know
12 specifically within the terms, right, what of
13 those terms, or which term or terms are the
14 most important things to you as it relates to
15 this particular establishment, not the ability
16 to negotiate, the terms specifically that you
17 would be negotiating. What is the most
18 important term that you find?
19 MS. DIENER: Right, I understand
20 what you're saying.
22 MS. DIENER: But what we

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1 appreciate is that when an establishment comes
2 to us and says we'd like to change thus and
3 such in our agreement, that we can then look
4 at it and evaluate it and say, well, if you do
5 that, say if you expand, if you bring this
6 many more seats in, if you increase your
7 hours, there are some other things we'd like
8 to see for the community. And this is where
9 the black wrought iron fence comes in, I
10 think. It's a small thing, but in exchange
11 for allowing an establishment to expand or to
12 open, we'd like this little $200 contribution
13 or whatever it is of a nice black wrought iron
14 fence to enhance the neighborhood. It's tiny.
15 It's a tiny concession, but those are really
16 the only kinds of things that we can seek
17 through this. So being consulted, being able
18 to weigh in and say these are our concerns,
19 this is what we would consider important.
20 And, you know, in a case like
21 Hank's, everybody likes the establishment.
22 Neither DCCA nor the neighbors want to be seen

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1 as holding up Hank's from expanding if it can
2 be done in such way that has minimal impact on
3 the community. And so for instance, something
4 I would ask for if I were doing these
5 negotiations is some sort of sound abatement,
6 plantings or other innovations, some of which
7 are currently starting to be used, be put into
8 place so that the next door neighbors perhaps
9 don't get quite as much noise as they might
10 otherwise.
11 MEMBER JONES: Great. So that
12 would be a term?
13 MS. DIENER: That would be
14 something we would ask for.
15 MEMBER JONES: That would be
16 something in --
17 MS. DIENER: In this case.
18 MEMBER JONES: -- this case that
19 you would ask for? And would you be asking
20 for that specifically because you have noise
21 concerns about this establishment?
22 MS. DIENER: For the --

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1 MEMBER JONES: Or noise concerns
2 in general about operators that operate --
3 well, late hours or early morning hours.
4 MS. DIENER: In this case
5 specifically for the next door neighbors.
6 MEMBER JONES: So specifically
7 related to Hank's?
8 MS. DIENER: Yes.
10 MS. DIENER: In this case.
11 MEMBER JONES: All right.
12 MS. DIENER: And if I may say very
13 briefly, this is one of the things that DCCA
14 ends up handling. It's individuals who are
15 disproportionately impacted who live next door
16 or across the street, these various hot spots
17 all over our territory. Those are the people
18 who come to us and ask for help. They're the
19 ones that no one else will stand up for
20 because, you know, we want Lauriol Plaza, we
21 want Hank's. You know, in general the
22 neighborhood wants this, but there are a few

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1 people who really bear the brunt of it and
2 they don't want it, and there's really no one
3 to stand up for them.
5 MS. DIENER: So DCCA can help by
6 coming to the table, assisting, trying to have
7 people be reasonable on both sides in hopes
8 that we can both support more business and
9 provide some protections to those most
10 directly affected.
11 MEMBER JONES: Okay. And
12 specifically you mentioned the word
13 "concessions."
14 MS. DIENER: Yes.
15 MEMBER JONES: And you were using
16 that in terms of the wrought iron and how that
17 would I guess beautify the community?
18 MS. DIENER: Yes.
19 MEMBER JONES: And you felt like
20 that wasn't too much to ask of the Licensee to
21 do that to contribute to the community?

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1 MEMBER JONES: Now that's not
2 specifically related to peace, order and
3 quiet, but would you consider that to be
4 related to property values? I'm trying to fit
5 it in.
6 MS. DIENER: Well, I do. I mean,
7 it goes with the --
8 MEMBER JONES: You do? So, that
9 would be --
10 MS. DIENER: -- broken glass
11 theory that the other gentleman was
12 expounding. I mean, you have ugly tree boxes
13 overgrown and a mess. It, you know, doesn't
14 make the neighborhood look as good.
16 MS. DIENER: And brings down
17 values, whereas a nicely tended box is good
18 for the tree and looks good.
19 MEMBER JONES: Okay. I can
20 rationalize that in my mind. Thank you very
21 much. I appreciate that.
22 MS. DIENER: You're welcome.

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2 Chairman.
4 Any other questions, Board?
6 CHAIRMAN BRODSKY: Gentlemen?
7 Yes, Mr. Kline?
8 MR. KLINE: Ms. Diener, just so
9 I'm clear, you said nobody wants to be seen
10 holding up Hank's, correct?
12 MR. KLINE: But you're willing to
13 hold up Hank's for a $200 wrought iron grate,
14 correct?
15 MS. DIENER: Hank's did not come
16 to us to discuss amendments, so no, we --
17 MR. KLINE: No, but the original
18 Voluntary Agreement required them to --
19 MS. DIENER: Which I was not a
20 part of, so I don't know how that went.
21 MR. KLINE: But your organization
22 was a part of it, correct?

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1 MS. DIENER: Yes.
2 MR. KLINE: Okay. Thank you. No
3 further questions.
4 MR. HIBEY: I have just one
5 follow-up question. I'm showing you
6 something, and let me know if you recognize
7 it.
8 CHAIRMAN BRODSKY: I think you got
9 to show it to Mr. Kline first, sir.
10 MR. HIBEY: Yes, I got a copy.
11 MS. DIENER: These are the
12 guidelines for public space outdoor caf‚s
13 recommended by the ANC.
14 MR. HIBEY: Okay. Is that what
15 you were referencing?
16 MS. DIENER: From Dupont Circle
17 ANC, yes.
18 MR. HIBEY: Is that what you were
19 referencing earlier?
20 MS. DIENER: Yes, thank you.
21 MR. HIBEY: And where are the
22 hours guidelines?

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1 MR. KLINE: Object on the grounds
2 it's irrelevant.
3 CHAIRMAN BRODSKY: Mr. Hibey, what
4 do you think about that?
5 MS. DIENER: I'm trying to address
6 the Board's question about the ANC guidelines.
7 MR. KLINE: The Board didn't have
8 a question --
9 CHAIRMAN BRODSKY: I don't think
10 we had a question about that.
11 MR. HIBEY: I thought the question
12 was what are the ANC guidelines? I don't know
13 what they are.
14 CHAIRMAN BRODSKY: Yes, well
15 there's no question from the Board for that,
16 but thank you for checking in with that.
17 MR. HIBEY: Okay.
18 CHAIRMAN BRODSKY: We had no
19 question about it.
20 MR. HIBEY: I'll still continue.
21 I think it's relevant in that we think the
22 guidelines are a factor to consider in the

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1 adverse impacts of terminating the Voluntary
2 Agreement.
3 CHAIRMAN BRODSKY: I'm not so sure
4 this witness is going to do that by testifying
5 from ANC guidelines. I'm still kind of hung
6 up on his relevancy question.
7 MR. HIBEY: Yes, because earlier
8 she said that the ANC guideline hours are the
9 appropriate hours and later hours would
10 adversely impact the neighborhood.
11 CHAIRMAN BRODSKY: And?
12 MR. HIBEY: And these are the ANC
13 guideline hours. No one knows what -- she
14 didn't even know what they were.
15 CHAIRMAN BRODSKY: How is that
16 relevant to the case?
17 MR. HIBEY: Because terminating
18 the Voluntary Agreement will allow the hours
19 to go beyond the ANC guideline hours. The ANC
20 guideline hours are the same as the hours that
21 are in the Voluntary Agreement.
22 CHAIRMAN BRODSKY: Okay. Yes,

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1 just keep it tight. I got you.
2 MR. KLINE: Mr. Chairman, the
3 notion that ANCs can pass guidelines and
4 somehow we have a mini set of regulations
5 within each neighborhood I strenuously object
6 to. The Council and this Board recommending
7 to the Council makes the regulations. And I
8 have always objected to the notion that, hey,
9 we have our neighborhood over here. We have
10 our own little set of regulations that we want
11 you to abide by. That's not the law and it's
12 just completely irrelevant.
13 CHAIRMAN BRODSKY: Yes, I just
14 think that what they're trying to establish is
15 that there's community guidelines out there
16 that the ANCs have. I personally don't
17 understand the relevance to it, but I don't
18 believe it to be irrelevant to the fact that
19 she couldn't say it. Please don't spend an
20 hour on it.
21 MR. HIBEY: I'll be done in a
22 minute.

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1 CHAIRMAN BRODSKY: But I don't
2 understand, Mr. Kline. I don't understand how
3 it hurts for her to say it.
4 MR. HIBEY: Okay. In front of
5 you, are those the ANC 2B guidelines?
6 MS. DIENER: Yes.
7 MR. HIBEY: And there is a
8 guideline hour for closing of sidewalk caf‚
9 outdoor restaurants?
10 MS. DIENER: Yes, depending on
11 where they're located. If they're across the
12 street from or approximate to residentially-
13 zoned blocks they recommend 11:00 p.m. Sunday
14 through Thursday and 12:00 midnight on Friday
15 and Saturday.
16 MR. HIBEY: Does the Voluntary
17 Agreement incorporate the ANC guidelines?
18 MS. DIENER: I'm not positive.
19 MR. HIBEY: Can I show you --
20 MS. DIENER: I have not -- I can
21 check it. I've got it right in front of me.
22 MR. KLINE: I think we can all

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1 read.
2 MS. DIENER: So we can all read
3 it?
4 CHAIRMAN BRODSKY: Just keep
5 moving on, Mr. Hibey. Don't get caught up in
6 this.
7 MR. HIBEY: That's the last
8 question.
9 CHAIRMAN BRODSKY: Okay. All
10 right. Good.
11 Any other questions? The Board
12 all good?
14 CHAIRMAN BRODSKY: Okay. Ms.
15 Diener, thank you so much for your time today.
16 Much appreciated.
17 MS. DIENER: Thank you.
18 CHAIRMAN BRODSKY: Mr. Kline,
19 you're going to start us off with a closing
20 statement?
21 MR. KLINE: Yes. As I said at the
22 outset we are here today to consider whether

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1 the Voluntary Agreement that was entered into
2 by Hank's Oyster Bar should be terminated.
3 The Board has already determined that what's
4 relevant in making the determination is to
5 whether it be terminated is whether the
6 termination would have an adverse impact on
7 the neighborhood.
8 Now, I think we disagreed a little
9 bit about what the standard is, but frankly I
10 like their standard better, because in terms
11 of what's been proven today I don't think
12 there's any doubt whatsoever based on the
13 testimony that the Board's heard that
14 termination of this Voluntary Agreement is not
15 going to have any adverse impact on the
16 neighborhood based upon the appropriateness
17 criteria.
18 The Board heard from Ms. Leeds who
19 testified about how she runs her operation.
20 She was at this point unsure as to what her
21 plans for changes might be. As the Board is
22 aware, there already is a request for

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1 expansion, and that's not relevant today.
2 We'll get to that in a few weeks. But in
3 terms of termination of the agreement, I think
4 it's pretty clear the testimony from the three
5 witnesses on the part of the Licensee, makes
6 it clear that this establishment is currently
7 operated, does not have an adverse impact.
8 And if there are any changes that arise as a
9 result of the termination of the Voluntary
10 Agreement, Ms. Leeds testified pretty clearly
11 that if they caused any adverse impact she's
12 going to react and deal with it.
13 What the District needs and what
14 the District has in this case is a responsible
15 operator. The notion that Voluntary
16 Agreements somehow make responsible operators
17 is ridiculous. Now, I agree that under
18 certain circumstances certain operators, they
19 need to be reined in. There isn't any
20 question about that. We're not saying that
21 under no circumstances is it appropriate for
22 there to be an additional level of controls on

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1 certain operators. But in this situation,
2 with this operator, it's just frankly not
3 needed. And I think that the Board perhaps
4 can use its energies on operators for which
5 conditions are needed and we would request
6 that the Voluntary Agreement be terminated.
7 Thank you.
9 Mr. Hibey?
10 MR. HIBEY: I wanted to thank the
11 Board for staying until 6:30, almost 7:00
12 tonight. I appreciate that.
13 What I first want to say is the
14 standard that the Board must use, it's been
15 discussed already. I'm not going to get into
16 it again, but my objection continues that the
17 Applicant must prove three things and the
18 burden's on the Applicant for the Board to
19 then make these three findings. And there has
20 been no evidence of the first finding related
21 to the good faith negotiations.
22 There has been no evidence related

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1 to the second finding where there must be a
2 need for this termination. But the Board has
3 decided not to hear testimony on that. I'm
4 not sure how the Board can make those
5 findings.
6 Moving onto the third item, the
7 Board must find that termination of the
8 Voluntary Agreement will not adversely impact
9 the neighborhood, and the burden is on the
10 Applicant. And the Applicant hasn't put forth
11 any evidence that termination will not
12 adversely impact the neighborhood.
13 The first two witnesses from the
14 Applicant have never seen the Voluntary
15 Agreement. They don't know what protections
16 or what's in the Voluntary Agreement. They
17 have no testimony on how termination of the
18 Voluntary Agreement will impact the
19 neighborhood.
20 The third and final witness, the
21 operator, she testified she doesn't know what
22 she's going to do if the Voluntary Agreement

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1 is terminated. That's not evidence for you to
2 make a finding that termination will not
3 adversely impact. Because you cannot make
4 these findings, you cannot grant the
5 application to terminate the Voluntary
6 Agreement.
7 And I'll go back just briefly to
8 what the Board has determined the statute
9 reads, is that any bar or restaurant can come
10 back to the Board after a Voluntary Agreement
11 has been negotiated and entered and say we're
12 a good operator, so now we can terminate.
13 That's not what the statute says. The statute
14 requires that has to at least be a need to
15 terminate. And there is no need here because
16 she says the Voluntary Agreement doesn't
17 restrict her at all.
18 But I understand the Board has
19 decided not to address that issue, so I'll
20 just in closing say there is no evidence on
21 which the Board could find that the
22 termination will not adversely impact the

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1 neighborhood. Thank you.
3 much.
4 Thank you all for being here.
5 It's late for all of us, right? So, thank you
6 very much. You guys sat through the whole
7 thing back there, so that's good. I didn't
8 even catch you nodding off one time back
9 there. That's good.
10 So, thanks everybody for being
11 here. We're going to take this matter under
12 advisement and we'll get back to you guys.
15 (Whereupon, the hearing was
16 concluded at 6:41 p.m.)
17
18
19
20
21
22

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202-234-4433
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202-234-4433

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Page 1

HERMAN JONES, Member

Neal R. Gross & Co., Inc.

Mr. Kline for the Licensee. . . . . . . . . .111

Mr. Hibey for the Protestants . . . . . . . .113

Mr. Kline for the Licensee. . . . . . . . . .372

Mr. Hibey for the Protestants . . . . . . . .374

Mikala Brennan. . . . . . . . . . . . . . . .116

Bill Zybach . . . . . . . . . . . . . . . . .127

Jamie Leeds . . . . . . . . . . . . . . . . .156

Jim McGrath . . . . . . . . . . . . . . . . .209

Mary Latka. . . . . . . . . . . . . . . . . .220

Abdi Poozesh. . . . . . . . . . . . . . . . .231

David Mallof. . . . . . . . . . . . . . . . .249

Robin Diener 334

5 Maps of the Neighborhood. . . . . . . . . . 98

Neal R. Gross & Co., Inc.

3 CHAIRMAN BRODSKY: Calling our

4 next case, please. 10-PRO-00094, Leeds the

5 Way, LLC, trades as Hank's Oyster Bar.

6 Parties forward. Introductions,

8 MR. KLINE: Good afternoon.

9 Andrew Kline, non-lawyer representative on

10 behalf of the Licensee.

11 MS. LEEDS: Jamie Leeds.

12 MR. KLINE: Principal of the

14 CHAIRMAN BRODSKY: Thank you for

16 MS. LEEDS: Hi.

17 MR. HIBEY: Good afternoon. Mike

18 Hibey here on behalf of the individuals

19 signatories to the Voluntary Agreement. Dave

20 Mallof is also here. He stepped out of the

21 room right before you called the case.

22 CHAIRMAN BRODSKY: So, the two

Neal R. Gross & Co., Inc.

2 five or more. Are you representing them?

3 MR. HIBEY: Yes.

4 CHAIRMAN BRODSKY: So, we have the

5 designated representative as Alexis Rieffel as

6 the designated representative. Is that person

8 MR. HIBEY: He's not.

9 CHAIRMAN BRODSKY: Okay. Do you

10 have a letter from the Group of Five or More

11 stating that you're their designated

13 MR. HIBEY: I do not have a

15 CHAIRMAN BRODSKY: He did?

16 MR. HIBEY: I entered my

17 appearance into this matter about two weeks

19 CHAIRMAN BRODSKY: This guy

20 Alexis, or this guy Mr. Hibey? So, he's cool?

21 Okay. All right. You're good,

Neal R. Gross & Co., Inc.

2 Oyster Bar, Leeds the Way?

3 Mr. Hibey, who else?

4 MR. HIBEY: I believe Robin Diener

5 is walking into the room, and I'm not sure

7 CHAIRMAN BRODSKY: Are you coming

8 forward as the District Dupont Circle Citizens

10 MS. DIENER: Yes.

11 CHAIRMAN BRODSKY: Sure, come on

12 in. Have a seat up front at the grown up's

13 table. Your name, please?

14 MS. DIENER: My name is Robin, R-