To Amend, Or To Terminate? Representatives in Protest Hearing Stumble over Terminology

To Amend, Or To Terminate? Reprsentatives in Protest Hearing Stumble over Terminology

By: Claire Rychlewski

A protest hearing against terminating the voluntary agreement of DuPont Circle’s Hank’s Oyster Bar became a quibble of vocabulary and definitions at yesterday’s Alcohol Bevereage Regulation Administration meeting.

 The DuPont Circle Citizens Association (DCCA), represented by Robin Diemer, and an additional group of five residents, have been fighting Hank’s Oyster Bar on this termination since June. Jamie Leeds, owner and head chef of Hank’s, originally submitted to a voluntary agreement, regulating hours of operating and seating capacity, and prohibits expansion.

 Hank’s now wishes to expand to the empty lot next to the restaurant, and so would like to terminate the voluntary agreement. Many DCCA members do not support this.

 The DCCA chose to criticize the way in which Hank’s would like to terminate the agreement. Michael Hibey, representative of the DCCA, cited the DC code 25-446-4D, in which he said that in order to achieve termination, a business must make a “good faithed attempt” to negotiate a mutually acceptable amendment. Hibey said that Leeds and her attorney, Andrew Kline, never tried to amend their voluntary agreement; a step he said was necessary in order to obtain permission for termination.

 But there was much contestation over the exact semantics of the wording in this particular code. Kline countered that within this code—section C of 25-446—the term “termination” appears as a separate action from “amendment.” He disputed the DCCA argument that businesses must first go through an amendment process in order to achieve termination.

 Hibey maintained that it was a step-by-step process, and that an amendment was thus crucial. “You have to do A and B to get to C,” he said. “The statute is very clear.” To this, Kline let out a loud laugh and responded, “That we disagree on.”

 There were certainly many disagreements, whether they were about the distinction between amendment and termination, or what the term “good faithed” means, or what was considered an “attempt” to meet. 

 Hibey said that Hank’s did not make that required “good faithed” attempt to meet and negotiate with the DCCA. Diener also said that she tried on many occasions to convene with Leeds, but could not.

 Under her breath Leeds responded, “That’s not true!” When questioned later, Leeds said that she and her attorney, Victor Wexler, did meet with Diener at Hank’s. Kline argued that the two parties did meet, but clearly did not concur.

 “Why should the parties even be forced to meet?” Kline asked. “’Gee, we don’t want to terminate. Well, gee, we want you to terminate. Okay, great meeting, have a nice day.’ Why should you even try to amend when the positions are clear?”

 The board members seemed to agree. Chairperson Charles Brodsky asked the DCCA, “A ‘good faithed’ attempt doesn’t mean they agree with you. Did it ever occur to you that most establishments don’t want a voluntary agreement on their businesses?”

 He had his own opinion on the matter, going on to say that voluntary agreements had become proscriptive devices, whereas before they had been the result of disruption or incidents at the establishment that concerned residents. “I may disagree with everyone but this table here,” he said, pointing to Kline and Leeds.

 There were mixed reactions from D.C. residents. Jacqueline Reed of Logan Circle said she is concerned about the vacating of voluntary agreements in general.

 “It’s the only leverage that a community has to keep businesses in check. The fact that the Board can’t handle these problems is baloney. I’m concerned to see them acting like voluntary agreements have no purpose.”

 Reed added that Chairperson Charles Brodsky, who seemed to agree with Hank’s petition for termination, is new on the board. “This is all his thinking,” she said. “This is not the way it’s been handled before.” Reed, like the DCCA members, is concerned about inappropriately timed noise levels that could result in termination of the voluntary agreement that would otherwise limit hours of operation.

 Other residents like Doug Rogers who is also on the DCCA, staunchly disagree with Diener’s protest. “I support Hank’s. It’s an amazing restaurant, and an amazing part of the community. If they would like to expand, I fully support that. These people [Diener and the DCCA] have too much time on their hands.”

Hank’s Oyster Bar has been open and operating since 2005. According to Leeds, there have never been any problems or complaints from the residents before.

 After a half-hour decision process, the board reconvened and unanimously dismissed the DCCA from the protest hearing, and dismissed the motion to protest the termination of the voluntary agreement. After this, the board heard from the group of five residents also protesting. Both sides presented witnesses who testified under oath. A surprising ending was Diener’s return as a witness although she had been already dismissed as a protestant.

 Said blogger Tom Hay, "This is a closely followed issue in the DuPont/Logan/U Street neighborhoos because we have so many new restaurants and bars. Everyone is wondering if this will set the stage for a more business friendly ABRA." 

The board has a few weeks to make a final decision on whether to terminate the voluntary agreement.