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19Th & K, Inc, T/A Ozio

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19Th & K, Inc, T/A Ozio Page 1 DISTRICT OF COLUMBIA + + + + + ALCOHOLIC BEVERAGE CONTROL BOARD + + + + + MEETING IN THE MATTER OF: 19th & K, Inc, t/a Ozio Martini & Cigar Lounge Protest 1813 M Street, NW Hearing Retailer CN (Status) ANC 2B License No. 89394 Renewal Application Case No. 13-PRO-00151 March 19, 2013 The Alcoholic Beverage Control Board met in Alcoholic Beverage Control Hearing Room, Reeves Building, 2000 14th Street N.W., Washington, D.C., Chairperson Ruthanne Miller presiding. PRESENT: RUTHANNE MILLER, Chairperson NICK ALBERTI, Member DONALD BROOKS, Member MICHAEL SILVERSTEIN, Member HECTOR RODRIQUEZ, Member JAMES SHORT, Member ALSO PRESENT: Felicia Dantzler, Investigator, ABRA Neal R. Gross and Co., Inc. 202-234-4433 Page 2 1 P-R-O-C-E-E-D-I-N-G-S 2 (1:39 p.m.) 3 CHAIRPERSON MILLER: Good 4 afternoon. I'm going to call Case Number 13- 5 PRO-00151. It's Ozio Martini and Cigar 6 Lounge, located at 1813 M Street, N.W., 7 License Number 89394 and ANC 2B. And I'm just 8 going to ask the parties to introduce 9 themselves for the record. 10 MR. FONSECA: Michael Fonseca, on 11 behalf of the licensee. With me is the Vice 12 President and one of the principals, Steven 13 Christacos, C-H-R-I-S-T-A-C-O-S. My last name 14 is F, like Frank, O-N-S-E-C-A. 15 CHAIRPERSON MILLER: When you're 16 ready, if you could introduce yourself for the 17 record? 18 MS. PECK: My name is Sarah Peck. 19 I'm a community representative. I'd like to 20 note for the purposes of the Board that, 21 although I am a licensed attorney I am in 22 inactive status. Neal R. Gross and Co., Inc. 202-234-4433 Page 3 1 I am admitted in the State of 2 Massachusetts. I've never tried a case. I'm 3 merely here as a community representative. So 4 I hope that you will bear with me as I try to 5 go through this proceeding. Thank you. 6 CHAIRPERSON MILLER: Okay. So, 7 I'm going to start off with my preliminary 8 matter. And that is that I'm going to be 9 recusing myself in this case out of an 10 abundance of caution. 11 I think back in 2010 I provided 12 counsel to Jefferson Condominium, with respect 13 to the voluntary agreement regarding this 14 establishment. So I am going to leave this 15 case in Mr. Alberti's hands to chair, and wish 16 you all a good hearing. 17 MR. FONSECA: Okay. 18 MS. PECK: Thanks. 19 MEMBER ALBERTI: I'm going to have 20 to switch places. It will be easier for some 21 parties to direct their attention if I do 22 that. Okay. Let's start. Are there any Neal R. Gross and Co., Inc. 202-234-4433 Page 4 1 preliminary matters, procedural issues that we 2 need to address before we begin? 3 MR. FONSECA: I don't think so. 4 MEMBER ALBERTI: Okay. Ms. Peck, 5 you said you haven't tried one of these cases. 6 Do you want me to go through briefly how this 7 will proceed? 8 MS. PECK: Sure. 9 MEMBER ALBERTI: Okay, it's like, 10 probably like, very much like any 11 administrative hearing you've witnessed. We 12 will start with opening statements. The 13 applicant will present their case first, call 14 witnesses. There'll be cross examination of 15 witnesses. And then the protestants will 16 present their case. 17 Again, there'll be witnesses and 18 cross examination of witnesses. After the 19 cross examination by the parties, the Board 20 usually has questions. And then we have 21 redirect and recross after that. Each side is 22 given a total of 90 minutes to present their Neal R. Gross and Co., Inc. 202-234-4433 Page 5 1 case. That includes examination and cross 2 examination of witnesses. 3 I forgot to mention that the first 4 witness today will be the ABRA's investigator, 5 who's reviewed this protest. And that will be 6 the Board's witness. And we will start with 7 that witness first. So before we begin, Mr. 8 Fonseca, how many witnesses do you plan to -- 9 MR. FONSECA: Four witnesses. 10 Yes, four witnesses. 11 MEMBER ALBERTI: Okay. Ms. Peck? 12 MS. PECK: Three witnesses. 13 MEMBER ALBERTI: Three witnesses, 14 okay. I'll just remind everybody that we 15 really want to, not want to hear duplicative 16 information. So we'll try to speed things up 17 that way. Do we need to call the rule on 18 witnesses? 19 MR. FONSECA: No, problem. 20 MEMBER ALBERTI: Do you 21 understand? 22 MS. PECK: No. What's the rule on Neal R. Gross and Co., Inc. 202-234-4433 Page 6 1 witnesses? 2 MR. FONSECA: Actually, I prefer 3 not having the rule on witnesses. 4 MEMBER ALBERTI: Okay. The rule 5 on witnesses, if it was applied, would mean 6 that all of the witnesses would have to leave 7 the room until they testify. 8 MS. PECK: Okay. And I agree 9 that's not necessary. 10 MEMBER ALBERTI: Okay. It's not 11 necessary, okay. Very good. So let's begin. 12 I'll give each side five minutes for opening 13 statements. And we'll begin with Mr. Fonseca. 14 MR. FONSECA: Yes. We're here for 15 what I would consider a somewhat limited 16 protest, albeit one that's meritorious on its 17 face. It goes to noise, primarily from the 18 music, to put the noise that's generated from 19 this establishment. 20 But more particularly, this 21 particular area of the District of Columbia 22 that's come to be known as Club Central, with Neal R. Gross and Co., Inc. 202-234-4433 Page 7 1 an abundant number of bars and lounges, and 2 restaurants that offer entertainment, that 3 also provide entertainment. 4 Unfortunately, because of the 5 timing sequence, Ozio was the first to be 6 placarded, the first to come up for protest, 7 the first to not sign a settlement agreement 8 that would have terminated the case, and now 9 the first to come to a full protest here. 10 As such, this is in essence a 11 focus on Ozio. But one that we believe the 12 evidence will show, an establishment that is 13 not a major responsible party for the noise 14 complaints. And particularly, to the 15 residents, which are the majority of the 16 protests. 17 And it's at the Palladium, which 18 is in excess of 700 feet, that could hear the 19 music that's being emitted from the space 20 that's the rooftop summer garden, which is 21 what will be the focal point of the 22 allegations. Neal R. Gross and Co., Inc. 202-234-4433 Page 8 1 We believe that our testimony, 2 which will include the original sound 3 engineer, back when we had a protest of the 4 request to the Board to approve the rooftop 5 space. And also some testimony as to some 6 current sound readings, to assist the 7 establishment and being compliant with the 8 noise control act. 9 Our propositions is, and has 10 always been, both with the protestants and, 11 frankly, before the Board, and will be part of 12 my summation is, an acknowledgment. There's 13 a voluntary agreement, which is a superseded 14 one from the first, that included a testing 15 period. 16 And it includes mechanisms for 17 complaining, principally for the Jefferson Row 18 Condominium, which is the immediate 19 residential unit, albeit in a C3(C) zone. And 20 also a recognition that the Noise Control Act 21 is enforceable. 22 Having said that, therein is the Neal R. Gross and Co., Inc. 202-234-4433 Page 9 1 real nut of this dilemma we have here. Is the 2 Noise Control Act has not been enforced by the 3 agency responsible, which is DCRA, which we 4 now finally have an ABRA joint agency task 5 force, noise task force. 6 And we believe that that is going 7 to ultimately result in further enforcement, 8 which will perhaps meet the needs of the 9 protestants, and also the needs of the 10 applicant at this renewal, as to knowing 11 whether they're compliant or not, as opposed 12 to, you know, the protestants or any other 13 citizen attempting to regulate this business, 14 as opposed to the regulators. 15 MEMBER ALBERTI: Thank you, Mr. 16 Fonseca. Okay, five minutes. 17 MS. PECK: This case is a wakeup 18 call to the ABRA Board. Stop granting summer 19 garden endorsements that permit amplified 20 sound outside. Ozio has such an endorsement 21 to operate an open roof dance club on the 22 third floor of a building in DuPont Circle. Neal R. Gross and Co., Inc. 202-234-4433 Page 10 1 This is a home. Hundreds of 2 people live there, children, professionals, 3 retired people. And they are regularly 4 disturbed when Ozio's pounding music is 5 released out of its roof into the night sky. 6 Engineer Carl Nelson, a resident, 7 will testify that he has used a DCRA noise 8 meter, and reported 101 decibels inside of 9 Ozio, just a few feet from the open roof.
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