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.
10 And although this has not been
11 admitted as evidence yet, with your permission
12 I'd like to just play a very short clip to
13 give you an idea of the kind of noise that
14 Ozio is generating. May I?
15 MEMBER ALBERTI: Any objection?
16 MR. FONSECA: Yes, I would object.
17 Opening statements aren't evidence, as closing
18 statements can only address evidence that's
19 been submitted.
20 MEMBER ALBERTI: Ms. Peck, are you
21 going to enter this?
22 MS. PECK: Yes, I am.
Neal R. Gross and Co., Inc. 202-234-4433 Page 11 1 MEMBER ALBERTI: Let's just wait -
2 -
3 MR. FONSECA: I'm reserving my
4 rights to object to any admission of any
5 videos.
6 MEMBER ALBERTI: I'm going to hold
7 that objection. We'll hold this until -- I
8 think it will be fine. We'll hear it later,
9 and I think that will be sufficient.
10 MS. PECK: Okay. Well, very well.
11 I can tell you right now that the noise that
12 you will hear on that video is of course not
13 as loud as it is inside of the club. One
14 hundred and one decibels is the sound of a
15 plane taking off.
16 And I have, you have to ask
17 yourself, would you want to listen to that
18 kind of noise when you are trying to sleep at
19 3:00 a.m.? As Ann Kappel will testify, this
20 is not a one time occurrence.
21 For years Ozio's noise has caused
22 considerable distress at Jefferson Row, which
Neal R. Gross and Co., Inc. 202-234-4433 Page 12 1 is located a half block away. She regularly
2 sleeps wearing hearing ear plugs. She will
3 testify that despite the careful and expensive
4 effort to negotiate the settlement agreement,
5 and despite years of complaints, Ozio is still
6 not complying with its settlement agreement.
7 Even Ozio's sound engineer, in his
8 report indicates that at 90 decibels, which is
9 considerably lower than 103 decibels, every
10 3.3 decibels it doubles in amount. Ozio's
11 noise could be heard inside the two Jefferson
12 Row apartments during the 2010 sound check.
13 And that was with the roof open, and possibly
14 even when it was closed.
15 The ABRA inspector, we believe she
16 reported in her report that she could hear
17 Ozio's rooftop music on the ground, in the
18 alley behind Ozio. And while I would argue
19 that the correct measurement should have been
20 taken three feet away from the open roof, and
21 not 30 to 40 feet away on the ground,
22 nevertheless, she could hear Ozio's noise
Neal R. Gross and Co., Inc. 202-234-4433 Page 13 1 three stories away, coming from a roof, over
2 the sound of a loud industrial band, and over
3 music coming from other clubs in the alley.
4 These facts will show that Ozio's
5 music is greatly in excess of 60 decibels,
6 which is the sound of a conversation. Carl
7 Nelson's testimony is consistent with the
8 inspector's findings.
9 He will testify that he has
10 measured 74 to 82 decibels in that alley, in
11 a alcove at the base of the establishment.
12 And that amount is over 60 decibels, and up to
13 22 decibels over the ambient sound levels.
14 Abigail Nichols will testify that
15 residents at the Palladium can hear noise from
16 Ozio, albeit it is mixed with noise from other
17 clubs. And despite her distress she will
18 explain why she and other residents have given
19 up calling ABRA for relief.
20 We have submitted letters from
21 other Palladium residents to help the Board
22 understand the level of distress that
Neal R. Gross and Co., Inc. 202-234-4433 Page 14 1 residents are experiencing.
2 To sum up, our evidence will show
3 that Ozio's noise violates the peace, order
4 and quiet of the residents of DuPont Circle,
5 and damages their property values.
6 Accordingly, we will ask the Board to find
7 Ozio's rooftop dance club inappropriate. The
8 Board should suspend Ozio's license, and order
9 immediate relief to long suffering residents.
10 And I'd like to add, from a policy
11 perspective, we also ask this Board to
12 reconsider its practice of granting summer
13 garden endorsements to licensees who plan to
14 use amplified sound outside. Ozio's case
15 clearly demonstrates that such endorsements
16 are unworkable.
17 MEMBER ALBERTI: Thank you, Ms.
18 Peck. We are now going to call the Board's
19 witness, Investigator Dantzler. And I'll
20 remind the parties that you'll have a chance
21 to ask questions of Investigator Dantzler.
22 But that will count against your total time.
Neal R. Gross and Co., Inc. 202-234-4433 Page 15 1 Investigator, if you would stand
2 and raise your right hand? Do you affirm that
3 the testimony that you are about to give will
4 be the truth, the whole truth, and nothing but
5 the truth?
6 INVESTIGATOR DANTZLER: I affirm.
7 MEMBER ALBERTI: Thank you.
8 Please be seated. Would you introduce
9 yourself, tell us what your position is at
10 ABRA, and then proceed to summarize your
11 report, please?
12 INVESTIGATOR DANTZLER: Sure. My
13 name is Felicia Dantzler, ABRA Investigator.
14 MEMBER ALBERTI: You may proceed
15 with your report. Thank you.
16 INVESTIGATOR DANTZLER: I'm not
17 going to read my report verbatim. I'm just
18 going to basically summarize on my report.
19 This is the, as we know, we're here for the
20 Ozio Martini and Cigar Lounge, Protest Number
21 13-PRO-00151. The protest is being, Ozio is
22 being protested by two groups of five, from
Neal R. Gross and Co., Inc. 202-234-4433 Page 16 1 the Palladium Condominium, and the Jefferson
2 Row Condominium Association.
3 On Wednesday, February 5th, 2014 I
4 spoke with Ms. Sarah Peck, who is identified
5 in ABRA records as the contact person to
6 communicate with, to determine the issues as
7 it relates to the community.
8 Ms. Peck advised that the Ozio
9 Martini and Lounge, that they have loud music
10 which emanates from the rooftop summer garden,
11 and interrupts the enjoyment and sleep of the
12 residents at the Palladium Condominium, as
13 well as Jefferson Row.
14 On Tuesday, February 11th of 2014
15 I telephonically spoke with Steven Christacos,
16 who's identified in ABRA records as one of the
17 owners. And Mr. Christacos stated that he had
18 no comment as it relates to that statement for
19 this investigation.
20 As you can see, Ozio Martini and
21 Cigar Lounge operates in an area that has
22 approximately 58 Board approved ABC
Neal R. Gross and Co., Inc. 202-234-4433 Page 17 1 establishments. The makeup of Ozio Martini
2 and Lounge, it consists of four floors, not
3 including, to include the basement.
4 On Page 6 of my investigative
5 report you can see the breakdown of the floors
6 as it relates to the capacity. Ozio Martini
7 and Cigar Lounge did not ask for any change in
8 their, any change of hours in their operation
9 of their establishment. Nor did they ask for
10 a change of hours for their rooftop summer
11 garden.
12 On Page 8 is what you're going to
13 see are the observations that I found. Ozio
14 was monitored by several ABRA investigators,
15 beginning -- Court's indulgence. Beginning on
16 February the 20th several ABRA investigators
17 monitored Ozio's Martini and Cigar Lounge.
18 From February 20th of this year
19 until March 15th there were a total of ten
20 observations. As you can see, you'll see the
21 dates and times, as well as the type of
22 weather during those monitorings. Listed on
Neal R. Gross and Co., Inc. 202-234-4433 Page 18 1 Page 8, which you will also find, are the
2 times that I heard music while at Ozio.
3 If you look at Exhibit Number 4 of
4 the packet, you'll see that on the front shows
5 Ozio. On the side of the photograph you'll
6 see an alley. This alley, from the beginning
7 of the 1800 block of M, like Mary, Street,
8 north by west, walking northbound through the
9 alley. And the first left that you get to
10 will put you behind Ozio's.
11 So while standing in the rear of
12 the establishment I can hear music that was
13 emanating from the rooftop summer garden. As
14 I continued to walk eastbound in the rear
15 direction westbound --
16 MEMBER SILVERSTEIN: Say again,
17 please? By standing in the alley?
18 INVESTIGATOR DANTZLER: Yes, the
19 rear of Ozio. I can hear the music from the
20 rooftop summer garden. So as I walked
21 westbound in the alley, the music would, the
22 sound would decrease.
Neal R. Gross and Co., Inc. 202-234-4433 Page 19 1 While I was also in the rear of
2 the establishment, Exhibit Number 4, if you
3 see on the side I have an arrow pointing
4 exactly, in the approximate area where 18th
5 Street Lounge is located. And that's another
6 ABC establishment. And that establishment as
7 well has some sort of outdoor activity on
8 their summer garden.
9 So, the further away I walked from
10 Ozio's I can, I heard, I could hear some
11 music. But I couldn't distinguish which
12 establishment the music was emanating. Nor
13 could I make out any type of lyrics. There
14 was some sort of pounding. But I couldn't
15 determine who actually, which establishment
16 was actually music that I was hearing.
17 The rear of this alley takes one
18 to the 1200 block of 19th Street as you
19 continue walking westbound. It deposits you
20 right into the 1200 block of 19th Street.
21 So I then walked on 19th to
22 Jefferson Place N.W. And what you cannot see
Neal R. Gross and Co., Inc. 202-234-4433 Page 20 1 in this photograph is that, I believe it's the
2 Palladium Condominiums are located closer to
3 19th and Jefferson Street, than it is at
4 Jefferson and, let's say 18th Street.
5 So as I walked eastbound in the
6 1800 block of Jefferson Street, I could hear,
7 more than halfway in the block is when I first
8 started hearing the noise. Or should I say,
9 the music.
10 Now, the Palladium Condominiums is
11 well, more than halfway in the block behind
12 me. So when I got to 19th and Jefferson I
13 couldn't hear any music, right down in the
14 area where the condominiums are located. No
15 music could be heard there.
16 The further I got into the 1900
17 block of Jefferson Street is when I first
18 picked up the sound of some sort of music.
19 And the music that I actually picked up is the
20 music that was from Heist, which is located in
21 the 1800 block of Jefferson Street.
22 Once I got to the opening to the
Neal R. Gross and Co., Inc. 202-234-4433 Page 21 1 alley, if you look at Exhibit Number 4, the
2 opening in the alley that is furthest from
3 you. That's where I would stand. And the
4 only music I can hear at that point is coming
5 from 18th Street Lounge, as well as Heist.
6 So, no music from Ozio Martini
7 could be heard in that area. And directly
8 across the street is the condominium for, is
9 the Jefferson Row Condominiums.
10 During the monitoring of Ozio's,
11 not one time did ABRA receive a complaint for
12 noise during our monitoring, as it relates to
13 Ozio Martini and Lounge. The times that I
14 went out there were just solely for the
15 monitoring for the protest and not out for the
16 complaint.
17 MR. FONSECA: Excuse me, what was
18 the last thing you said? And not what?
19 INVESTIGATOR DANTZLER: The
20 monitoring that ABRA investigators did for
21 Ozio was not from a complaint. But it was
22 solely because of this protest investigation.
Neal R. Gross and Co., Inc. 202-234-4433 Page 22 1 And that's the end of summary.
2 MEMBER ALBERTI: Is that your
3 report?
4 INVESTIGATOR DANTZLER: Yes.
5 MEMBER ALBERTI: Thank you. Okay.
6 As far as the Board, are there questions of
7 the investigator? Mr. Short?
8 MEMBER SHORT: Good afternoon,
9 Investigator.
10 INVESTIGATOR DANTZLER: Good
11 afternoon.
12 MEMBER SHORT: You stated in your
13 testimony that you walked further away from
14 the club in question, and you heard noise
15 emitting from other clubs? Approximately how
16 far were you away from the club at that time,
17 or your direct location?
18 INVESTIGATOR DANTZLER: I would
19 say approximately 60 feet from the rear of the
20 establishment. I stood under, right under
21 where the rooftop garden is. And I could hear
22 it. But the further I got away, approximately
Neal R. Gross and Co., Inc. 202-234-4433 Page 23 1 60 feet, is where I could not distinguish
2 which music I actually hearing.
3 MEMBER SHORT: In your estimation,
4 or guesstimation as a investigator, was where
5 you were standing, was peace, order and quiet
6 preserved? Or how would you --
7 INVESTIGATOR DANTZLER: I wouldn't
8 characterize as a disturbance.
9 MEMBER SHORT: Thank you.
10 MEMBER ALBERTI: Thank you Mr.
11 Short. Mr. Silverstein?
12 MEMBER SILVERSTEIN: Thank you,
13 Investigator. I was, I have some questions
14 about where you were, where the various
15 buildings are? You said that as you walked
16 westbound the sound would, in the alley the
17 sound would decrease?
18 INVESTIGATOR DANTZLER: Correct.
19 MEMBER SILVERSTEIN: And you said
20 that you couldn't distinguish. Was that
21 because there was just an overall din that
22 you, you know, if a lot of people are yelling,
Neal R. Gross and Co., Inc. 202-234-4433 Page 24 1 the person closest to you will be the one you
2 hear or distinguish. Whereas, there's still
3 a lot of people yelling. Was this a matter
4 where simply sound decreased? Or where you
5 were picking up other sounds?
6 INVESTIGATOR DANTZLER: The other
7 sounds that I heard was from 18th Street
8 Lounge, and as well as Ozio. But the further
9 away I got, I couldn't tell whose music was
10 being heard. And by the time I got to the end
11 of the alley that deposited me in the 1200
12 block of 19th Street, no music was heard.
13 MEMBER SILVERSTEIN: You didn't
14 hear any music --
15 INVESTIGATOR DANTZLER: No.
16 MEMBER SILVERSTEIN: -- from the
17 end of the alley? It was quiet?
18 INVESTIGATOR DANTZLER: No music
19 heard. None.
20 MEMBER SILVERSTEIN: And where did
21 you say the Palladium is located?
22 INVESTIGATOR DANTZLER: It's on
Neal R. Gross and Co., Inc. 202-234-4433 Page 25 1 the lower end of the 1800 block of Jefferson
2 Place N.W. Closer to 19th and Jefferson.
3 Around 18th--
4 MEMBER SILVERSTEIN: The
5 Palladium's on 18th Street.
6 INVESTIGATOR DANTZLER: The
7 Palladium's on 18th Street?
8 MEMBER SILVERSTEIN: Yes, is it
9 not? They're on the other side of Connecticut
10 Avenue, aren't they?
11 INVESTIGATOR DANTZLER: That was
12 not my understanding. I spoke with one of the
13 managers at Ozio, who helped me to identify
14 where the condominium was located. Jefferson
15 was clearly marked on their building.
16 The building that was identified
17 to me was actually 1830. But there's no name
18 on that building. And I believed that to be
19 the Palladium.
20 MEMBER SILVERSTEIN: So how far
21 away, if you were walking towards Connecticut
22 Avenue, could you hear Ozio? And is there
Neal R. Gross and Co., Inc. 202-234-4433 Page 26 1 just a general din as you go towards
2 Connecticut Avenue?
3 INVESTIGATOR DANTZLER: Well, my
4 investigation didn't lead me to Connecticut
5 Avenue, because the music was in the rear of
6 the establishment, which is towards the
7 rooftop summer gardens of it.
8 MEMBER SILVERSTEIN: Did you get
9 up to the roof?
10 INVESTIGATOR DANTZLER: No, I
11 didn't go to the roof.
12 MEMBER SILVERSTEIN: Do you know
13 if there are any buildings that are taller
14 than Ozio, that would buffet or block the
15 noise? Or make it reverb or echo?
16 INVESTIGATOR DANTZLER: I don't
17 recall any buildings taller than Ozio. But I
18 do recall buildings pretty much the same
19 height as Ozio's.
20 MEMBER SILVERSTEIN: No further
21 questions.
22 MEMBER ALBERTI: Other Board
Neal R. Gross and Co., Inc. 202-234-4433 Page 27 1 Members? Investigator, I have a similar
2 question. Thank you for your report. So, all
3 of your observations of sound were at street
4 level, correct?
5 INVESTIGATOR DANTZLER: Correct.
6 MEMBER ALBERTI: So you never went
7 into, I think there are two condominiums that
8 are involved here, or at least the Palladium.
9 INVESTIGATOR DANTZLER: Correct.
10 MEMBER ALBERTI: You didn't go
11 into the upper floors of the Palladium? Do
12 you know how tall the Palladium is? How many
13 floors it is?
14 INVESTIGATOR DANTZLER: It
15 appeared to be about four stories.
16 MEMBER ALBERTI: Okay. So you
17 didn't go up into the upper stories, and try
18 to enter one of the apartments and residents
19 --
20 INVESTIGATOR DANTZLER: No.
21 MEMBER ALBERTI: -- and observe
22 sound?
Neal R. Gross and Co., Inc. 202-234-4433 Page 28 1 INVESTIGATOR DANTZLER: No. I
2 purposefully did not go into the condominiums
3 to determine the noise level. I wanted to
4 have the initiation brought upon from the
5 protestant --
6 MEMBER ALBERTI: Okay.
7 INVESTIGATOR DANTZLER: -- the
8 Board to confirm or deny.
9 MEMBER ALBERTI: Now, you also
10 stated that --
11 MR. FONSECA: Mr. Alberti, if we
12 may, I think the parties will stipulate
13 there's, we're beginning to get confusion as
14 to the Jefferson Row Condos, and the
15 Palladium, which are two distinct buildings
16 far removed from each other. The Jefferson
17 Row Condominium is on Jefferson Place.
18 INVESTIGATOR DANTZLER: Correct.
19 MR. FONSECA: The Palladium is at
20 18, excuse me, 1325 18th Street.
21 MEMBER ALBERTI: Okay.
22 MR. FONSECA: On the other side of
Neal R. Gross and Co., Inc. 202-234-4433 Page 29 1 Connecticut Avenue. So I just think, so that
2 we don't have to clean this up later, maybe if
3 we stipulate to that --
4 MEMBER ALBERTI: On the other side
5 of --
6 MR. FONSECA: -- it may be
7 helpful.
8 MEMBER ALBERTI: On the other side
9 of Connecticut Avenue, okay.
10 MR. FONSECA: Correct.
11 MEMBER ALBERTI: So the Jefferson
12 Row Condominiums is the one that's --
13 MR. FONSECA: In closest proximity
14 --
15 MEMBER ALBERTI: Just --
16 MR. FONSECA: -- to the rear.
17 MEMBER ALBERTI: Just west of
18 Ozio's on Jefferson Street?
19 MR. FONSECA: Yes. And their rear
20 meets the same alley.
21 MEMBER ALBERTI: Ms. Peck is that
22 --
Neal R. Gross and Co., Inc. 202-234-4433 Page 30 1 MR. FONSECA: We will stipulate to
2 that.
3 MS. PECK: Yes, that is correct.
4 That is the correct location.
5 MEMBER ALBERTI: Okay, great.
6 Thank you very much.
7 MR. FONSECA: And I'm sorry about
8 the interruption.
9 MEMBER ALBERTI: That's all right.
10 MR. FONSECA: I just thought it
11 would be helpful.
12 MEMBER ALBERTI: Okay. So,
13 Investigator, you said that you weren't aware
14 of any complaints, noise complaints from
15 residents, regarding Ozio's, while you were
16 doing your, while you were monitoring. Would
17 you have been made aware of those?
18 INVESTIGATOR DANTZLER: Yes.
19 MEMBER ALBERTI: Okay. So your
20 statement really is that ABRA didn't get any
21 noise complaints? And you would know whether
22 or not ABRA did get noise complaints during
Neal R. Gross and Co., Inc. 202-234-4433 Page 31 1 that period?
2 INVESTIGATOR DANTZLER: Correct.
3 All the complaints may not have come to me.
4 It would have went to other investigators, who
5 would advise me of their findings.
6 MEMBER ALBERTI: Right. And no
7 one did advise you --
8 INVESTIGATOR DANTZLER: Correct.
9 MEMBER ALBERTI: -- that there
10 were complaints?
11 INVESTIGATOR DANTZLER: No one
12 advised me that they responded to Ozio's
13 because of a complaint was lodged.
14 MEMBER ALBERTI: Okay. Very good.
15 That's what I'm trying to understand.
16 INVESTIGATOR DANTZLER: Okay.
17 MEMBER ALBERTI: Thank you very
18 much. Okay. Mr. Fonseca, questions for
19 Investigator Dantzler?
20 MEMBER JONES: Oh --
21 MEMBER ALBERTI: Just one moment,
22 please.
Neal R. Gross and Co., Inc. 202-234-4433 Page 32 1 MR. FONSECA: All right.
2 MEMBER ALBERTI: I'm sorry, we had
3 another Board Member who's coming late to the
4 game. Mr. Jones?
5 MEMBER JONES: Better late than
6 never. Sorry about that. Investigator, how
7 are you?
8 INVESTIGATOR DANTZLER: How are
9 you?
10 MEMBER JONES: Do you happen to
11 have your report in front of you? I'm looking
12 at Exhibit 2.
13 INVESTIGATOR DANTZLER: I do.
14 MEMBER JONES: This is just, it
15 will help me out. Just because I'm spatially
16 retarded sometimes. I need your help. All
17 right, when you get to Exhibit 2, just let me
18 know.
19 INVESTIGATOR DANTZLER: Will do.
20 MEMBER ALBERTI: Exhibit 2 is one
21 of the maps?
22 MEMBER JONES: Yes.
Neal R. Gross and Co., Inc. 202-234-4433 Page 33 1 INVESTIGATOR DANTZLER: Okay. I
2 have Exhibit 2.
3 MEMBER JONES: Excellent. So on
4 there is a call out box for Ozio, at 1813 M
5 Street, N.W. And there's a circle drawn
6 around that, I guess a circle centered at 1813
7 M Street, N.W., or approximately a circle. Is
8 that the Exhibit 2 that you're looking at as
9 well?
10 INVESTIGATOR DANTZLER: Yes.
11 MEMBER JONES: Okay. The alley
12 that you noted that you are standing in or at,
13 at the time that you initiated some of your
14 activities related to sound measurement, is
15 that alley there denoted in that drawing?
16 INVESTIGATOR DANTZLER: It is.
17 MEMBER JONES: Okay. From a frame
18 of reference standpoint, if I am looking at
19 this map, is it towards the top of the box
20 that is noted at 1813? Or is it towards the
21 bottom, where the alley is?
22 INVESTIGATOR DANTZLER: Where I
Neal R. Gross and Co., Inc. 202-234-4433 Page 34 1 would stand?
2 MEMBER JONES: Yes.
3 INVESTIGATOR DANTZLER: It's in
4 the --
5 MEMBER JONES: So the box says,
6 1813 M Street, N.W. You see that box?
7 INVESTIGATOR DANTZLER: Yes.
8 MEMBER JONES: There's a narrow
9 white path. Is that the alley?
10 INVESTIGATOR DANTZLER: Yes.
11 MEMBER JONES: Okay. Were you
12 standing directly behind that box, on the
13 short side of it, or the long side of it?
14 INVESTIGATOR DANTZLER: The long
15 side.
16 MEMBER JONES: Okay.
17 INVESTIGATOR DANTZLER: I stood
18 there.
19 MEMBER JONES: So you were to the
20 right of 1813 M Street, in the alley to the
21 right of 1813 M Street initially, correct?
22 INVESTIGATOR DANTZLER: Correct.
Neal R. Gross and Co., Inc. 202-234-4433 Page 35 1 When I enter into, I go to the right, yes.
2 MEMBER JONES: Okay. So you're
3 at, If I'm out, if I am on the street, and I'm
4 looking at 1813 M Street, looking at Ozio's,
5 in order for me to get into that alley I would
6 go to the right of the front of the building,
7 and walk down that alley, correct?
8 INVESTIGATOR DANTZLER: Correct.
9 MEMBER JONES: Okay. You walked
10 down that alley?
11 INVESTIGATOR DANTZLER: Yes.
12 MEMBER JONES: You did? Okay.
13 And then you made a left, and proceeded down
14 the alley that is between the top set of
15 buildings and the set of buildings where 1813
16 is, correct?
17 INVESTIGATOR DANTZLER: Correct.
18 MEMBER JONES: Okay. And then you
19 walked all the way down from 1813, all the way
20 down to the end of that alley?
21 INVESTIGATOR DANTZLER: Correct.
22 MEMBER JONES: Okay. So when you
Neal R. Gross and Co., Inc. 202-234-4433 Page 36 1 were speaking to, you heard it initially, it
2 being the sound emanating from Ozio's, but
3 then it began to taper off, or became blended
4 in with other sounds? And then eventually
5 tapered off to nothing?
6 INVESTIGATOR DANTZLER: Correct.
7 MEMBER JONES: Where were you when
8 it tapered off to nothing?
9 INVESTIGATOR DANTZLER: About,
10 probably about 45 feet before I left the
11 alley.
12 MEMBER JONES: Okay. So you were
13 still physically in the alley --
14 INVESTIGATOR DANTZLER: Correct.
15 MEMBER JONES: -- when it tapered
16 off to nothing?
17 INVESTIGATOR DANTZLER: Correct.
18 MEMBER JONES: Okay. And just to
19 help me out a little bit more, on this diagram
20 can you denote where the two condominium
21 complexes of note are located, as it relates
22 to this diagram?
Neal R. Gross and Co., Inc. 202-234-4433 Page 37 1 INVESTIGATOR DANTZLER: Yes. If
2 you look at the word Jefferson, in front of
3 the ER, the word ER right directly in front of
4 that is approximately, that's 1830, which I
5 understood to be the condominium that was in
6 question. And I believed that to be the
7 Palladium, because there was no name on that
8 building.
9 MEMBER JONES: Understood.
10 INVESTIGATOR DANTZLER: And then
11 as far as Jefferson Row, where it has
12 northwest, right by that triangle, a little
13 part of that triangle, and a little part to
14 the left is Jefferson Row.
15 MEMBER JONES: Okay. So roughly
16 where the northwest is, the triangular shape
17 is?
18 INVESTIGATOR DANTZLER: Correct.
19 MEMBER JONES: Okay. The other
20 condominium or residential location?
21 INVESTIGATOR DANTZLER: Correct.
22 MEMBER JONES: Yes? Okay. All
Neal R. Gross and Co., Inc. 202-234-4433 Page 38 1 right. And just to a clarifying question, I
2 think this is where, just to follow-up on
3 Board Member Silverstein's question, 1813
4 there, how tall is that, approximately how
5 many stories?
6 INVESTIGATOR DANTZLER: It's four
7 stories.
8 MEMBER JONES: Four stories?
9 INVESTIGATOR DANTZLER: For
10 laymen, it's four stories. However, the
11 Certificate of Occupancy includes the rooftop
12 garden as part of the third floor. So there's
13 the basement, first, second, third, to include
14 the rooftop garden, according to the
15 Certificate of Occupancy.
16 MEMBER JONES: Okay. Fair enough.
17 The buildings that are immediately to the
18 right, as I look at this Exhibit 2, the
19 buildings that are immediately to the right,
20 that are perpendicular to the direction of
21 1813, how tall are those buildings generally?
22 Are they taller than the Ozio establishment?
Neal R. Gross and Co., Inc. 202-234-4433 Page 39 1 INVESTIGATOR DANTZLER: They're,
2 some are a little lower. But they're pretty
3 much the same.
4 MEMBER JONES: Pretty much the
5 same height? Okay. A similar question for
6 the row of buildings that are directly behind
7 1813. Are they taller, the same height or
8 lower?
9 INVESTIGATOR DANTZLER: Those vary
10 in height as well.
11 MEMBER JONES: Okay. Do you
12 happen to remember the two buildings that
13 appear to be directly behind 1813? Are they
14 approximately the same height, taller or
15 lower?
16 INVESTIGATOR DANTZLER: As it
17 relates to Ozio?
18 MEMBER JONES: Yes.
19 INVESTIGATOR DANTZLER: They're
20 about the same.
21 MEMBER JONES: Okay. So it
22 doesn't appear from your recollection, none of
Neal R. Gross and Co., Inc. 202-234-4433 Page 40 1 the buildings that are immediately surrounding
2 1813 are taller than the rooftop of 1813? If
3 they are, it's not significant?
4 INVESTIGATOR DANTZLER: Correct?
5 MEMBER JONES: Okay. Thank you.
6 Thank you, Chairman.
7 MEMBER ALBERTI: Thank you. Thank
8 you, Mr. Jones. Okay. Mr. Fonseca?
9 MR. FONSECA: Okay. Thank you.
10 Investigator Dantzler, why don't we pick up
11 with what Member Jones was talking to you
12 about. In looking at your Exhibit 2, let's be
13 clear. Because despite the stipulation, I'm
14 still not sure we're clear on where the
15 Palladium is.
16 Your testimony where Jefferson
17 Place is, the ER in Jefferson, is essentially
18 located, in your opinion, where the 18, was it
19 1830 Jefferson Place, where the Jefferson Row
20 Condominium?
21 INVESTIGATOR DANTZLER: Correct.
22 MR. FONSECA: That's correct?
Neal R. Gross and Co., Inc. 202-234-4433 Page 41 1 INVESTIGATOR DANTZLER: No.
2 That's the Palladium, to my understanding,
3 that's the Palladium.
4 MR. FONSECA: This --
5 MEMBER ALBERTI: Okay. Let me
6 interrupt. Just for the record, the parties
7 have stipulated that that's -- I know your
8 perception is that it's the Palladium. But
9 the parties have stipulated that it is the
10 Jefferson Condominium on Jefferson Street.
11 So, just to make it clear in this
12 discussion, and easier for everyone, we'll
13 refer to that place underneath the ER as the
14 Jefferson Condominium. Because that's what
15 the parties have stipulated to.
16 MR. FONSECA: Did you ever go to a
17 location of the, where the other protestants
18 are, where Ms. Peck resides, at 1325 18th
19 Street, to that building?
20 INVESTIGATOR DANTZLER: No.
21 MR. FONSECA: Because that's the
22 actual address of the Palladium. This Exhibit
Neal R. Gross and Co., Inc. 202-234-4433 Page 42 1 2 purports to be a 400 foot buffer, the ring.
2 And so I don't think the witness knows where
3 the Palladium is. But my visual suggests that
4 the Palladium wouldn't even appear on this
5 exhibit. Because it's beyond the map. It's
6 nearby. But it's beyond.
7 MEMBER ALBERTI: Well, you can
8 enter that in testimony.
9 MR. FONSECA: We'll try to get to
10 that. I just think there was a bit of
11 confusion on that. Let's deal with one other
12 one. And it may just be your terminology.
13 You referenced that there was a group of five
14 from the Palladium, and a separate group of
15 five from Jefferson Row. How did you
16 determine that?
17 INVESTIGATOR DANTZLER: By letter.
18 There was a letter submitted to our office,
19 identifying --
20 MR. FONSECA: Do you have that
21 letter? Is it the protest letter dated
22 November 12th with the ABRA stamp on it?
Neal R. Gross and Co., Inc. 202-234-4433 Page 43 1 INVESTIGATOR DANTZLER: I believe
2 that's --
3 MEMBER ALBERTI: Again, I'm going
4 to try to speed things along, Mr. Fonseca. I
5 think our records show that there are, this
6 group of five, I'm not sure how large the
7 actual group is. But we have one protesting
8 group.
9 Now, there are members of that
10 group who I believe reside in the Jefferson
11 Condominiums. And there are members of that
12 same group that reside in the Palladium, if
13 I'm correct. Just so, and I don't know where
14 you're going with this. But hopefully that
15 will help clear things up.
16 MR. FONSECA: This is part of the
17 record. So it's not --
18 MEMBER ALBERTI: All right, go
19 ahead. I'm trying to be helpful.
20 MR. FONSECA: I just referenced
21 that she has that. It would reflect that
22 there are only two signatories from the
Neal R. Gross and Co., Inc. 202-234-4433 Page 44 1 Jefferson Row, which is the 1830 Jefferson
2 Place. And approximately 22 from the
3 Palladium, which is 1335, which together made
4 up the group, a singular group of five.
5 MEMBER ALBERTI: Okay. Well
6 continue then, if that's your point. Go
7 ahead.
8 MR. FONSECA: Looking at your
9 observations, I know you listed all the dates
10 of those observations. Those confirm, were
11 those all days that you went out? Or was it
12 a combination of you and other ABRA
13 investigators?
14 INVESTIGATOR DANTZLER: It's both.
15 The ones that are with bullet points are those
16 times that I actually heard the music.
17 MR. FONSECA: The bullet points
18 being --
19 INVESTIGATOR DANTZLER: On Page 8.
20 MR. FONSECA: -- those four
21 particular dates?
22 INVESTIGATOR DANTZLER: Correct.
Neal R. Gross and Co., Inc. 202-234-4433 Page 45 1 MR. FONSECA: All right. And to
2 confirm, in looking at your chart of ten
3 separate visits, it appears that this would be
4 over a period of 23 days. Is that correct?
5 INVESTIGATOR DANTZLER: Correct.
6 MR. FONSECA: And it was your
7 testimony that over that 23 day period there
8 was never a complaint logged into ABRA, a
9 noise complaint --
10 INVESTIGATOR DANTZLER: Correct.
11 MR. FONSECA: -- regarding Ozio?
12 INVESTIGATOR DANTZLER: Correct.
13 MR. FONSECA: And again, from your
14 Exhibit Number 2, excuse me, 4, which is that
15 photograph of the front of Ozio, where were
16 you when you first heard the noise where you
17 could, the music when it was clearly only
18 Ozio?
19 Were you in the alley that's
20 depicted here, which is the one that would
21 take you straight to Jefferson Row, I mean,
22 excuse me, Jefferson Place? Or was it the
Neal R. Gross and Co., Inc. 202-234-4433 Page 46 1 alley that then meets it, that would then take
2 you towards 19th Street?
3 INVESTIGATOR DANTZLER: This, the
4 alley that would take you to 19th Street.
5 MR. FONSECA: Okay. Did you ever
6 hear any music from the other establishments
7 that back onto that alley, as you started to
8 walk down that alley from M Street?
9 INVESTIGATOR DANTZLER: No.
10 MR. FONSECA: Do you know what
11 other establishments there are that back onto
12 that alley?
13 INVESTIGATOR DANTZLER: Yes.
14 There's Camelot --
15 MR. FONSECA: I'm talking
16 particularly the one that would back on to the
17 alley you would walk down to from M Street.
18 INVESTIGATOR DANTZLER: Right.
19 MR. FONSECA: Meaning the ones
20 that their addresses are on 18th Street.
21 INVESTIGATOR DANTZLER: The only
22 one I could hear, let me say two. I can hear
Neal R. Gross and Co., Inc. 202-234-4433 Page 47 1 two, 18th Street Lounge.
2 MR. FONSECA: Okay.
3 INVESTIGATOR DANTZLER: And I also
4 heard Heist, which carries in ABRA records an
5 18th Street address. However, it's actually
6 physically located in the 1800 block of
7 Jefferson Place.
8 MR. FONSECA: Okay. So if you
9 were to walk on this alley and go all the way
10 to Jefferson Place, and you turned right, is
11 that where Heist would be?
12 INVESTIGATOR DANTZLER: That's
13 correct.
14 MR. FONSECA: And is theirs a
15 rooftop there also, to your knowledge?
16 INVESTIGATOR DANTZLER: To my
17 knowledge, no.
18 MR. FONSECA: Okay. Is 18th
19 Street Lounge have a rooftop? Or open --
20 INVESTIGATOR DANTZLER: Yes.
21 MR. FONSECA: -- an open space?
22 INVESTIGATOR DANTZLER: An open
Neal R. Gross and Co., Inc. 202-234-4433 Page 48 1 area, yes.
2 MR. FONSECA: Okay.
3 MR. FONSECA: Again, looking at
4 the, do you recall the height of the building
5 next to Ozio on M Street, that office building
6 there, next to the alley that separates the
7 two buildings that you walk down? That's your
8 zip four.
9 INVESTIGATOR DANTZLER: Repeat
10 that, Mr. Fonseca.
11 MR. FONSECA: Exhibit 4 shows the
12 alley, and it shows a building that I can't
13 tell where the roof line is. There is an
14 appearance that it's taller than Ozio.
15 INVESTIGATOR DANTZLER: Yes.
16 MR. FONSECA: Did you ever make a
17 guess at, or count the windows going up, as to
18 how tall that building might be?
19 INVESTIGATOR DANTZLER: No. I
20 didn't count the windows. But on the back
21 side of that is where the, what it appeared to
22 me is where the rooftop garden is located. So
Neal R. Gross and Co., Inc. 202-234-4433 Page 49 1 there's a parcel, a blank parcel in the rear
2 of that. I guess it's for parking. And if I
3 stood there I could hear the music as well.
4 MR. FONSECA: Okay. I don't think
5 I have any further questions.
6 MEMBER ALBERTI: Are you done?
7 MR. FONSECA: Yes.
8 MEMBER ALBERTI: Okay. Ms. Peck,
9 I'm sorry. Go ahead, please.
10 MS. PECK: Hi there. I have a
11 couple of questions for you. First of all,
12 did you ask Ozio for their complaint log when
13 you visited them?
14 INVESTIGATOR DANTZLER: No.
15 MS. PECK: Okay. Your report said
16 that you could hear music that you, was
17 clearly from Ozio on, for these visits. So
18 just to track where the sound was coming from,
19 it was on a roof deck, came down three
20 stories, and then was behind the
21 establishment, correct?
22 INVESTIGATOR DANTZLER: Correct.
Neal R. Gross and Co., Inc. 202-234-4433 Page 50 1 MS. PECK: Okay. And you also
2 noted that there was a loud industrial fan.
3 And that was on the back of Ozio, right?
4 INVESTIGATOR DANTZLER: Correct.
5 MS. PECK: Very loud?
6 INVESTIGATOR DANTZLER: Correct.
7 MS. PECK: And you also said that
8 there was 18th Street, which has a outdoor
9 space that's much lower. It's about a story
10 up, right? And that was down that part of the
11 alley that goes over to Jefferson Row. So
12 between M Street to Jefferson Row.
13 INVESTIGATOR DANTZLER: Correct.
14 MS. PECK: So a lot of noise back
15 there, right?
16 INVESTIGATOR DANTZLER: I can
17 three distinct noises, yes.
18 MS. PECK: You could hear Ozio's
19 music over all of that? And despite the fact
20 that it's coming off of a roof and down 30
21 feet into an alley, or 40 feet, how far it is?
22 INVESTIGATOR DANTZLER: Right. I
Neal R. Gross and Co., Inc. 202-234-4433 Page 51 1 can hear like the bass. Couldn't make our
2 lyrics. But yes, I can hear music.
3 MS. PECK: Right. Okay. Have you
4 had any, now that rooftops are kind of a new
5 thing, has there been any special training for
6 how to monitor the sound that's coming from a
7 rooftop establishment?
8 INVESTIGATOR DANTZLER: Did I
9 receive any special training?
10 MS. PECK: Yes.
11 INVESTIGATOR DANTZLER: Our office
12 has discussed enforcement of it. But I don't
13 know what training you're asking about.
14 MS. PECK: So for example, if
15 you're on the ground, and next to an
16 establishment that has music coming out the
17 front door, like Heist, for example, you'll
18 hear that music right there, because you're
19 right in front of it, right?
20 INVESTIGATOR DANTZLER: Correct.
21 MS. PECK: But if it's something
22 that's up on a roof deck it might be going to
Neal R. Gross and Co., Inc. 202-234-4433 Page 52 1 places that you can't hear, because it's going
2 up into the sky and across rooftops, right?
3 INVESTIGATOR DANTZLER: Correct.
4 MS. PECK: So you don't have any
5 way to measure that.
6 INVESTIGATOR DANTZLER: Other, the
7 same measurement I take when I'm, the same
8 measurement I took directly behind the
9 building is the same listening ear I had when
10 I was away from the building.
11 MS. PECK: Right. But you didn't
12 have like a ladder that could take you up
13 closer? Or didn't go on to a nearby fire
14 escape, or a nearby roof, to see what it might
15 be like if you were on the, you know, line
16 with the --
17 INVESTIGATOR DANTZLER: On the
18 same level?
19 MS. PECK: Yes.
20 INVESTIGATOR DANTZLER: No.
21 MS. PECK: But it would be louder
22 up there? Coming out of the roof deck, do you
Neal R. Gross and Co., Inc. 202-234-4433 Page 53 1 think it would be louder, closer to it?
2 MR. FONSECA: Objection.
3 MEMBER ALBERTI: Okay, wait.
4 Okay. The objection?
5 MR. FONSECA: Objection. I don't
6 know if she could draw that conclusion. She
7 never was at that height?
8 MEMBER ALBERTI: Ms. Peck, do you
9 want to respond?
10 MS. PECK: My response is, I think
11 we all understand how sound operates. We've
12 had TVs, stereos, things like that in our
13 life. I think we have common understanding
14 of, when you're closer to something it's
15 louder. When you're farther away it's less
16 loud.
17 MEMBER ALBERTI: Okay. Your
18 point's well taken. But the objection, I
19 think, was that it was speculation. And I
20 have to --
21 MS. PECK: My point is actually --
22 MEMBER ALBERTI: I'm going to
Neal R. Gross and Co., Inc. 202-234-4433 Page 54 1 sustain the objection --
2 MS. PECK: -- to establish she
3 doesn't know.
4 MEMBER ALBERTI: Okay. She
5 doesn't know.
6 MS. PECK: Okay. You don't know
7 whether it was louder if you got closer?
8 INVESTIGATOR DANTZLER: If I got
9 closer to the top of the building?
10 MS. PECK: If you got closer to
11 the source of the sound, it might have been
12 louder. But you don't know? Or you do have
13 an opinion, a professional opinion about that,
14 having come closer to music in your --
15 MR. FONSECA: Objection. I think
16 we've established that she's had no special
17 training. She was using her ear. And she was
18 doing that from the ground level.
19 MEMBER ALBERTI: Yes. Ms. Peck, I
20 think that's been established. And I think
21 you're kind of going to waste your time on
22 that one too.
Neal R. Gross and Co., Inc. 202-234-4433 Page 55 1 MS. PECK: Okay. Well, that's
2 fine.
3 MEMBER ALBERTI: I suggest that
4 you move on.
5 MS. PECK: That's fine. Okay. If
6 it were during the day, and someone were on
7 the roof having a conversation, and you were
8 on the ground behind the building, there was
9 a fan going, do you think you could hear what
10 they were saying in that conversation?
11 INVESTIGATOR DANTZLER: No, I
12 can't.
13 MS. PECK: Okay. No further
14 questions.
15 MEMBER ALBERTI: All right. Thank
16 you. Okay. Any further questions?
17 MR. FONSECA: I have none.
18 MEMBER ALBERTI: Any follow-up
19 questions from the Board?
20 MEMBER SILVERSTEIN: Yes.
21 MEMBER ALBERTI: Mr. Silverstein?
22 MEMBER SILVERSTEIN: Investigator,
Neal R. Gross and Co., Inc. 202-234-4433 Page 56 1 the protestants are asking, and I would also,
2 I'd like to know, did you ever hear anything,
3 did you ever listen to anything at a level
4 above the street level, being the noise that
5 they're referring to is three stories high?
6 Did you ever hear it from anything higher than
7 street level?
8 INVESTIGATOR DANTZLER: No, I
9 didn't. I didn't have a resident to go into,
10 at prompting from a resident to come inside
11 their home to listen for the music.
12 MEMBER SILVERSTEIN: So the
13 protestants, or no one asked you or offered
14 you to come into their home to hear the noise,
15 which if you had heard it would have been in
16 violation of ordinance? No one asked you? Or
17 nobody offered you?
18 INVESTIGATOR DANTZLER: Not during
19 the monitoring. No one asked me to come into
20 their residence. And I think it's important
21 too, Mr. Silverstein, if you look at Exhibit
22 18 of the voluntary agreement.
Neal R. Gross and Co., Inc. 202-234-4433 Page 57 1 On Page 2, as it talks about, you
2 see Clause Number 5, even if I was able to go
3 inside an resident's home, I think it's,
4 because of the language and the settlement
5 agreement, it doesn't state what an acceptable
6 level is.
7 So even if the parties were to
8 enter in some sort of agreement with the
9 settlement agreement about what the acceptable
10 level is. So if there's a volume of ten
11 spokes, ten spokes could have been the norm.
12 Or should I say, ten spokes could have been
13 approved on both sides.
14 So because there's no number for
15 volume, I don't know what the acceptable level
16 is. I could have heard it in their residence.
17 And that could have been acceptable. But
18 there is no specified number in this
19 agreement.
20 Perhaps, you know, the spirit of
21 this agreement, or the letter of the agreement
22 is upon the Board, I would think, to determine
Neal R. Gross and Co., Inc. 202-234-4433 Page 58 1 what the acceptance is.
2 (Off the record comments)
3 MEMBER SILVERSTEIN: Okay. And
4 the Palladium is about 700 feet to the
5 northeast of the licensee, on the other side
6 of Connecticut Avenue. Did you ever have any
7 opportunity to go over there? Or did they
8 ever invite you over there to hear what was
9 going on over on the east side of Connecticut
10 Avenue?
11 INVESTIGATOR DANTZLER: No.
12 MEMBER SILVERSTEIN: Okay.
13 INVESTIGATOR DANTZLER: You know,
14 I really dropped the ball on the Palladium.
15 I understood that the Palladium, that was my
16 deduction, was because Jefferson Row
17 Condominiums was labeled, and the other
18 building was not.
19 I would have, I assumed that was
20 the Palladium. And I know that Ms. Peck also
21 stated that the noise could be heard at
22 Massachusetts Avenue, N.W. and N Street, N.W.,
Neal R. Gross and Co., Inc. 202-234-4433 Page 59 1 which is way on the other side, far west from
2 the establishment itself.
3 MEMBER SILVERSTEIN: Thank you,
4 Ms. Dantzler.
5 MEMBER ALBERTI: Okay. Mr.
6 Brooks?
7 MEMBER BROOKS: Yes, thank you,
8 Chairman. Investigator, have you had any
9 other occasion, other than this protest
10 preparation document that you prepared, to
11 visit Ozio?
12 INVESTIGATOR DANTZLER: Yes, I've
13 been there on a couple of complaints. Not
14 noise related though.
15 MEMBER BROOKS: So they were not
16 noise related complaints?
17 INVESTIGATOR DANTZLER: Correct.
18 MEMBER BROOKS: Okay. Thank you.
19 MEMBER ALBERTI: Thank you. Okay.
20 I'm going to ask if you have questions, just
21 on the two Board Members questions that were
22 just asked. Mr. Fonseca?
Neal R. Gross and Co., Inc. 202-234-4433 Page 60 1 MR. FONSECA: Only on those, no.
2 MEMBER ALBERTI: Ms. Peck? All
3 right. Thank you. All right. Investigator
4 Dantzler --
5 INVESTIGATOR DANTZLER: Okay.
6 MEMBER ALBERTI: Thank you for
7 coming.
8 INVESTIGATOR DANTZLER: Thank you.
9 MEMBER ALBERTI: Okay. Mr.
10 Fonseca, you can call your first witness.
11 MR. FONSECA: Yes. Can you just
12 give me one moment? I call Kevin O'Connor,
13 please.
14 MEMBER ALBERTI: Mr. O'Connor,
15 would you please raise your right hand? Do
16 you solemnly affirm that the testimony you're
17 about to give will be the truth, the whole
18 truth, and nothing but the truth?
19 MR. O'CONNOR: I do affirm.
20 MEMBER ALBERTI: Thank you.
21 Please be seated. You may proceed.
22 MR. FONSECA: Mr. O'Connor, would
Neal R. Gross and Co., Inc. 202-234-4433 Page 61 1 you please state your name and your, what your
2 occupation or elected position also is?
3 MR. O'CONNOR: I am Kevin
4 O'Connor. I'm the Commissioner for the
5 Advisory Neighborhood Commission 2B-02. And
6 I'm also the Chairperson of our ABRA policy
7 committee.
8 MR. FONSECA: Give me one moment.
9 Members of the Board, I'm going to use Mr.
10 O'Connor to get in most of our exhibits,
11 without objection. There are, my second
12 witness would be able to establish the
13 foundation for the others. So if I could give
14 staff these exhibits, so the Board will have
15 them?
16 MEMBER ALBERTI: So, my
17 understanding is that you're not going to
18 establish the foundation here for these?
19 MR. FONSECA: No. I will. But if
20 there's an objection -- Because one of them's
21 going to be a sound report.
22 MEMBER ALBERTI: Okay.
Neal R. Gross and Co., Inc. 202-234-4433 Page 62 1 MR. FONSECA: And I think,
2 frankly, there may be an objection as to that.
3 (Off the record comments)
4 (Pause)
5 MEMBER ALBERTI: Are they labeled,
6 Mr. Fonseca?
7 MR. FONSECA: Yes, they are.
8 MEMBER ALBERTI: Great.
9 (Off the record comments)
10 MR. FONSECA: I have these for
11 you. You just have to identify them as I
12 begin to ask you. First of all, before we
13 deal with any of the exhibits, did you
14 participate in the negotiation of the
15 voluntary agreement for the original rooftop
16 approval?
17 MR. O'CONNOR: I did. That
18 actually, as the, I was the appointed liaison
19 to ABRA matters in ANC 2B-06. That was prior
20 to me actually being on the Commission. But
21 I was appointed by the Commission to handle
22 liquor matters in ANC 2B-06. That's correct.
Neal R. Gross and Co., Inc. 202-234-4433 Page 63 1 MR. FONSECA: And subsequently,
2 did you then get elected to the Commission?
3 MR. O'CONNOR: That's true.
4 MR. FONSECA: Okay. Is it correct
5 that this occurred back in the fall of 2010?
6 MR. O'CONNOR: Yes.
7 MR. FONSECA: And do you recall at
8 that time whether or not the applicant
9 undertook a professional sound engineer to do
10 some sound measurements?
11 MR. O'CONNOR: Yes. As part of
12 the negotiation period for the voluntary
13 agreement there was sound testing conducted.
14 MR. FONSECA: I've marked an
15 exhibit that I've indicated as Applicant's
16 Exhibit 1. Did you receive that exhibit from
17 me back on October 27th?
18 MR. O'CONNOR: I did.
19 MR. FONSECA: And at that time,
20 was it by email to you, and also to Ann
21 Kappel?
22 MR. O'CONNOR: That's correct.
Neal R. Gross and Co., Inc. 202-234-4433 Page 64 1 MR. FONSECA: Jefferson Condos.
2 MR. O'CONNOR: Although the
3 specific date of October I do not, I could not
4 say.
5 MR. FONSECA: Would you identify
6 the cover page, and what the date, and what
7 the label is on that?
8 MR. O'CONNOR: Sure. That would
9 be this document here, October 27th, 2010.
10 MR. FONSECA: Okay. And is it
11 labeled as Ozio, Washington, D.C., measurement
12 and evaluation of sound levels?
13 MR. O'CONNOR: That's correct.
14 MR. FONSECA: Okay. Subsequently,
15 was there not a initial voluntary agreement at
16 that time, what the terminology was, entered
17 into? A short time after that sound
18 measurement was taken?
19 MR. O'CONNOR: Yes. We did enter
20 into a voluntary agreement, both the party of
21 five or more and the ANC.
22 MR. FONSECA: And the ANC?
Neal R. Gross and Co., Inc. 202-234-4433 Page 65 1 MR. O'CONNOR: That's correct.
2 MR. FONSECA: And at that time,
3 did that also include a testing period?
4 MR. O'CONNOR: Yes. Approximately
5 six months or so I believe was what was, more
6 or less.
7 MR. FONSECA: Do you recall
8 whether or not it also had some earlier hours
9 on the closing of the rooftop? Not the room,
10 like there's a retractable roof --
11 MR. O'CONNOR: Right.
12 MR. FONSECA: -- that that would
13 be shut?
14 MR. O'CONNOR: That's correct.
15 MR. FONSECA: At an hour earlier
16 than the 2:00 a.m. and 3:00 a.m. closing?
17 MR. O'CONNOR: That's correct.
18 MR. FONSECA: Now what I marked as
19 Exhibit 3, this was Exhibit 2. I'm going to
20 ask that they all get moved in at the end of
21 this testimony. Now, marked as Exhibit 2 was
22 a first amendment to the voluntary agreement.
Neal R. Gross and Co., Inc. 202-234-4433 Page 66 1 MR. O'CONNOR: Yes.
2 MR. FONSECA: Do you recall that
3 June 30, 2011 was going to be the termination
4 of the testing period?
5 MR. O'CONNOR: Yes. I believe
6 it's actually a provision in the voluntary
7 agreement, that the ANC would agree to review
8 that June 30th.
9 MR. FONSECA: And then did the
10 parties not agree to extend that testing
11 period through August 31st of 2011?
12 MR. O'CONNOR: That's correct.
13 MR. FONSECA: And is that document
14 identified as the first amendment, did it deal
15 with that, along with some other matters?
16 MR. O'CONNOR: Yes, it did.
17 MR. FONSECA: Okay. And lastly,
18 Exhibit 4. Is that now the superseding
19 agreement and Board order that is the current
20 agreement, to your knowledge?
21 MR. O'CONNOR: I do believe this
22 is the current agreement, yes.
Neal R. Gross and Co., Inc. 202-234-4433 Page 67 1 MR. FONSECA: And that is the
2 Board order dated July 27th, 2011, for Exhibit
3 4?
4 MR. O'CONNOR: Yes, that's
5 correct.
6 MEMBER ALBERTI: That is the
7 fourth exhibit?
8 MR. FONSECA: That was the fourth
9 exhibit.
10 MEMBER ALBERTI: What was the
11 third one again?
12 MR. FONSECA: Third one was a
13 short first amendment to the voluntary
14 agreement.
15 MEMBER ALBERTI: And what was two
16 then? I missed that.
17 MR. FONSECA: Two was the first
18 voluntary agreement.
19 MEMBER ALBERTI: But first, two
20 was the first voluntary agreement. And then
21 three was the amendment? Okay.
22 MR. FONSECA: Sound measures was
Neal R. Gross and Co., Inc. 202-234-4433 Page 68 1 Number 1.
2 MEMBER ALBERTI: Okay. I got you.
3 Thank you.
4 MR. FONSECA: And to be clear, the
5 Board order on Applicant's Number 2 is dated
6 November 17th, 2010. And then there was a
7 first amendment, and then the final, shall we
8 call it the current superseding, which was the
9 replacement agreement, July 27, 2011.
10 MEMBER ALBERTI: Okay. Could I
11 ask you, on that voluntary agreement, we're
12 now on the final one, which is marked as
13 Number 4. It does recite under, on Page 1, at
14 Item Number 4, reference to the applicant
15 acknowledging familiarity with the D.C. Noise
16 Control Act and D.C. Code, Section 25-725?
17 MR. O'CONNOR: Yes, it does. That
18 is Provision 4.
19 MR. FONSECA: And did it also
20 remove the restrictions on the early closing
21 on the retractable roof?
22 MR. O'CONNOR: It did.
Neal R. Gross and Co., Inc. 202-234-4433 Page 69 1 MR. FONSECA: And was that agreed
2 to after the testing period?
3 MR. O'CONNOR: That's correct.
4 MR. FONSECA: Without objection, I
5 move that these be admitted.
6 MEMBER ALBERTI: Okay. Ms. Peck,
7 no objections? Okay. We'll admit Licensee's
8 Exhibits 1 through 4.
9 MR. FONSECA: Thank you. Since
10 that 2011 agreement, has the ANC had cause to
11 file complaints with ABRA as to enforcement of
12 that agreement?
13 MR. O'CONNOR: No. When the
14 matter came before us in October or November,
15 we chose to take no action.
16 MR. FONSECA: Is that the 2013
17 renewal application?
18 MR. O'CONNOR: That correct.
19 MR. FONSECA: So, as of this point
20 then the ANC has taken a no action policy?
21 MR. O'CONNOR: That's correct.
22 MR. FONSECA: I have no further
Neal R. Gross and Co., Inc. 202-234-4433 Page 70 1 questions.
2 MEMBER ALBERTI: Ms. Peck.
3 MS. PECK: Mr. O'Connor, are you
4 familiar with the Noise Control Act, what it
5 requires?
6 MR. O'CONNOR: I am familiar with
7 it.
8 MS. PECK: Okay. And could you
9 tell us what the legal requirement is under
10 the law?
11 MR. O'CONNOR: I believe -- Are
12 you talking about proximity or decibel level?
13 I know that it's a 60 decibel limit, placed on
14 noise after the hours of 10:00 p.m. to 7:00
15 a.m.
16 MS. PECK: And what is the
17 distance from the establishment? Do you know
18 that?
19 MR. O'CONNOR: Not off the top of
20 my head, no.
21 MS. PECK: Okay.
22 MR. O'CONNOR: I believe it's
Neal R. Gross and Co., Inc. 202-234-4433 Page 71 1 several feet.
2 MS. PECK: Yes, it's three feet.
3 MR. O'CONNOR: It's three feet,
4 yes. I knew it was a small amount. Thank
5 you.
6 MS. PECK: So you helped negotiate
7 the settlement agreement? You made sure, you
8 were a part of the negotiating team that put
9 that provision in the settlement agreement?
10 MR. O'CONNOR: That's correct. It
11 was myself and the group of five or more from
12 Jefferson Row.
13 MS. PECK: Do you think it's
14 unreasonable for residents to expect Ozio to
15 comply with that term of the settlement
16 agreement?
17 MR. O'CONNOR: No.
18 MS. PECK: If Ozio's noise exceeds
19 60 decibels within three feet, would you take
20 the view that the settlement agreement was
21 being violated?
22 MR. O'CONNOR: I mean, the
Neal R. Gross and Co., Inc. 202-234-4433 Page 72 1 Provision 4, under the voluntary agreement
2 states that they understand the D.C. Noise
3 Control Act. So --
4 MS. PECK: And will comply with
5 it?
6 MR. O'CONNOR: And will comply
7 with it.
8 MS. PECK: So if you're not
9 complying with the law, would that be a
10 violation of the settlement agreement, in your
11 view?
12 MR. O'CONNOR: Yes, I suppose.
13 MS. PECK: And if, and there's
14 another provision in here that says -- Excuse
15 me. My version is marked up. Let me check
16 with that. Is there a provision in here that
17 talks about, what provision is it that talks
18 about residents being able to hear the system
19 in their home?
20 MR. O'CONNOR: There is, there are
21 two provisions. I believe in Section 5 it
22 talks about the applicant will take steps to
Neal R. Gross and Co., Inc. 202-234-4433 Page 73 1 mitigate noise that makes residents
2 uncomfortable in their residence.
3 And I think the great part about
4 this particular settlement agreement is, there
5 is a mechanism in place to record complaints
6 filed with the establishment, so that we can
7 help monitor that, and be able to easily
8 mitigate any concerns that arise that way.
9 MS. PECK: And is it your
10 understanding that if the residents are
11 disturbed by the current noise levels, then
12 Ozio is supposed to take steps to bring down
13 the noise levels until they're no longer
14 disturbed? Is that what your understanding of
15 how this works?
16 MR. O'CONNOR: Yes. My
17 understanding, and I believe what we
18 established through the sound testing was that
19 there were appropriate, they sort of gauged
20 where residents were made uncomfortable by the
21 stereo system. And were able to report to
22 Ozio, and had a direct line to them to be able
Neal R. Gross and Co., Inc. 202-234-4433 Page 74 1 to file any complaints. So that they could
2 mitigate the problem.
3 MS. PECK: Today we will have
4 testimony from one of the residents of
5 Jefferson Row, who will say that there has
6 been ongoing discomfort and distress caused by
7 the noise levels. If that is true, would you
8 consider that a violation or a, yes, a
9 violation of this provision of the settlement
10 agreement?
11 MR. O'CONNOR: I don't know if I
12 could speculate without knowing more about the
13 particular complaint in mind. I know that at
14 the time of renewal in October or November, it
15 was not brought to our attention that this
16 was, that the noise at this establishment was
17 particularly troublesome.
18 MS. PECK: As an ANC Commissioner,
19 do you support the enforcement of the Noise
20 Control Act?
21 MR. O'CONNOR: I do.
22 MS. PECK: No further questions.
Neal R. Gross and Co., Inc. 202-234-4433 Page 75 1 MEMBER ALBERTI: Thank you.
2 MR. FONSECA: One question on
3 recross.
4 MEMBER ALBERTI: You'll have a
5 chance. We have Board questions first.
6 Members of the Board, any questions?
7 MEMBER JONES: Yes, I guess so.
8 MEMBER ALBERTI: Mr. Jones?
9 MEMBER JONES: Thank you, Mr.
10 Chairman. Just really quickly, so if I
11 understand correctly the, as you understood
12 the SA, an appropriate level was set based on
13 the noise measurement tests that were
14 performed?
15 And the residents and the
16 establishment came to an understanding of what
17 reasonable was? And that's what the right
18 definition of reasonable is, as per the SA?
19 Is that how it's supposed to be interpreted?
20 MR. O'CONNOR: That's my
21 understanding.
22 MEMBER JONES: That's your
Neal R. Gross and Co., Inc. 202-234-4433 Page 76 1 understanding?
2 MR. O'CONNOR: Yes.
3 MEMBER JONES: Okay.
4 MR. O'CONNOR: And I believe
5 that's demonstrated in the sound report that
6 was conducted on October 27th, 2010.
7 MEMBER JONES: Okay. Was it
8 anticipated at that time, was that time
9 roughly around October 27th of 2010, based on
10 the date of this report that I have in my
11 hand?
12 MR. O'CONNOR: I believe that's
13 accurate.
14 MEMBER JONES: Okay. Was it
15 speculated at that time that residents of
16 these particular condominium establishments
17 may change, that is, individual people who
18 lived there at 2010 may not be the same people
19 who live there in 2012, 2014?
20 MR. O'CONNOR: Certainly.
21 MEMBER JONES: Okay.
22 MR. O'CONNOR: And I will say that
Neal R. Gross and Co., Inc. 202-234-4433 Page 77 1 we, during this protestant group, we only
2 dealt with the Jefferson Row Condominium
3 during this initial round. So the Palladium
4 was not involved in that.
5 MEMBER JONES: Okay. So the
6 definition of what's appropriate was limited
7 to what the individuals of the Jefferson
8 Condominium established what was acceptable at
9 that point, at that discreet point in time in
10 2010, correct?
11 MR. O'CONNOR: Yes, sir.
12 MEMBER JONES: Okay. Was there
13 any, was it anticipated that there would be
14 any opportunity to revisit that as the members
15 of that condominium potentially changed? So
16 what's acceptable for one individual may not
17 be acceptable for the next individual?
18 So that definition of right seems
19 to be fluid, based on time and person. Was
20 that anticipated? And if so, what measures
21 were anticipated to address that change?
22 MR. O'CONNOR: I believe the only
Neal R. Gross and Co., Inc. 202-234-4433 Page 78 1 specific provision that we agreed to revisit
2 with regards to noise was how the rooftop was
3 operating.
4 We agreed to have an interim
5 period where we could adjust the settlement
6 agreement with the applicant, about how the
7 roof operated, when it was covered to various
8 degrees. And we agreed to revisit that, as I
9 mentioned earlier.
10 MEMBER JONES: Right.
11 MR. O'CONNOR: About six months.
12 But in terms of that, no, we did not
13 anticipate that in our settlement agreement.
14 MEMBER JONES: Okay. So it was
15 your understanding that that defined
16 definition of reasonable was to go on through
17 perpetuity?
18 MR. O'CONNOR: Yes, sir.
19 MEMBER JONES: Okay. Thank you.
20 Thank you, Mr. Chairman.
21 MEMBER ALBERTI: Commissioner
22 O'Connor, I'm not sure if you're the right
Neal R. Gross and Co., Inc. 202-234-4433 Page 79 1 person to ask these questions. But, I mean,
2 early on, when the first settlement agreement
3 was signed, there was agreements about when to
4 close the retractable roof.
5 MR. O'CONNOR: Yes, sir.
6 MEMBER ALBERTI: Those agreements
7 have gone by the wayside, correct?
8 MR. O'CONNOR: Yes. To sort of
9 summarize what happened, because it was a new
10 addition in that area, and there was so much
11 concern around it, we agreed to limited use to
12 sort of gauge the sound coming from it, to see
13 what least upset neighbors.
14 And then once we established a
15 comfortable level, we agreed to remove the
16 provisions restricting the roof deck in the
17 updated settlement agreement.
18 MEMBER ALBERTI: Okay. So help me
19 understand. When you were trying to figure
20 out what was comfortable for the residents at
21 that time, I mean, how did you do that? By
22 closing the roof, or by changing the volume?
Neal R. Gross and Co., Inc. 202-234-4433 Page 80 1 I mean --
2 MR. O'CONNOR: Actually, yes.
3 MEMBER ALBERTI: Where did you end
4 up?
5 MR. O'CONNOR: There were --
6 MEMBER ALBERTI: What was the
7 final, what did the final solution entail?
8 MR. O'CONNOR: So, it did involve
9 a lot of, I believe Ms. Kappel, when she
10 testifies later will be able to discuss this
11 in greater depth. Because she was one of the
12 people who assisted with this.
13 But it did involve a lot of
14 raising volume, lowering volume, calling
15 across to the club to sort of establish
16 acceptable levels of noise coming from the
17 business.
18 MEMBER ALBERTI: But in the end,
19 it seems to me from what I'm seeing here. In
20 the end, the solution that was arrived at was,
21 oh, we don't need to close the roof. We can
22 mitigate this, the sound issues, based on the
Neal R. Gross and Co., Inc. 202-234-4433 Page 81 1 measurements and agreements we have here.
2 MR. O'CONNOR: That's right.
3 MEMBER ALBERTI: But to that level
4 we can do that by adjusting the sound.
5 MR. O'CONNOR: Right.
6 MEMBER ALBERTI: Is that correct?
7 MR. O'CONNOR: And we were
8 satisfied with the fact that the club had been
9 responsive when complaints were filed with it.
10 When residents from Jefferson Row would call
11 the club, they would generally be very
12 responsive about adjusting that level.
13 MEMBER ALBERTI: So how involved
14 were you with the testing?
15 MR. O'CONNOR: I was not very
16 involved with the testing. And actually, the
17 applicant and group of five or more were the
18 ones who really worked it out. Because the
19 group of five or more obviously have
20 residences that were abutting the club.
21 But as my role as the ANC, I fully
22 supported the residents, and wanted to ensure
Neal R. Gross and Co., Inc. 202-234-4433 Page 82 1 that we had an agreement that was up to their
2 standards.
3 MEMBER ALBERTI: Okay. So just
4 to, just so I know I'm not missing something
5 here from you, is that you really can't speak
6 to how effective opening and closing the roof
7 was --
8 MR. O'CONNOR: No, I can't.
9 MEMBER ALBERTI: -- in terms of
10 mitigating sound?
11 MR. O'CONNOR: I can only speak to
12 the fact that we were comfortable enough with
13 it to remove that from the settlement
14 agreement eventually.
15 MEMBER ALBERTI: Okay. Very good.
16 Any other Board Members? Okay. Mr. Fonseca
17 --
18 MR. FONSECA: Yes. Mr. O'Connor -
19 -
20 MEMBER ALBERTI: -- redirect.
21 MR. FONSECA: You, when pressed by
22 Ms. Peck as to whether you would deem a
Neal R. Gross and Co., Inc. 202-234-4433 Page 83 1 violation, in excess of 60 to be a violation,
2 I'm not sure you were clear as to how did you
3 determine that violation.
4 Is it fair to say that the
5 regulatory agency responsible for taking those
6 readings and reporting them is the approach
7 that would deem it to be a violation?
8 MR. O'CONNOR: That's correct.
9 MR. FONSECA: Would any citizen
10 that runs around with a purported application
11 that has a noise reading app to it, would that
12 be satisfactory for purposes of making
13 allegations of violations?
14 MR. O'CONNOR: It wouldn't satisfy
15 me. But it's not, I'm not in a position to
16 determine what satisfies that.
17 MR. FONSECA: Thank you.
18 MEMBER ALBERTI: Okay. Ms. Peck.
19 MS. PECK: I just have one
20 question. You were saying today a level was
21 set, based on people determining that it
22 didn't disturb them in their homes. What was
Neal R. Gross and Co., Inc. 202-234-4433 Page 84 1 that decibel level? Do you know?
2 MR. O'CONNOR: I would have to
3 check the sound report to make sure. I know,
4 I don't know off the top of my head.
5 MS. PECK: The sound report says
6 that they were using 90 decibels for the sound
7 test. But I don't know where they ended up.
8 Is that where they ended up?
9 MR. O'CONNOR: I honestly do not
10 remember off the top of my head. I apologize.
11 I do know that we did reach a level when we
12 were negotiating it that left people satisfied
13 with it. Whether or not that was at a
14 particular level, higher or lower, I can't
15 testify to that.
16 MS. PECK: I have no further
17 questions.
18 MEMBER ALBERTI: Thanks. Thank
19 you, Commissioner.
20 MR. O'CONNOR: Thank you.
21 MEMBER ALBERTI: You may be
22 excused.
Neal R. Gross and Co., Inc. 202-234-4433 Page 85 1 MR. FONSECA: I'm going to call
2 Gerald Henning to the stand, please.
3 MEMBER ALBERTI: Mr. Henning,
4 would you please raise your right hand? Do
5 you solemnly affirm that the testimony you're
6 about to give will be the truth, the whole
7 truth, and nothing but the truth?
8 MR. HENNING: I do.
9 MEMBER ALBERTI: Thank you.
10 Please be seated.
11 MR. FONSECA: Mr. Henning, would
12 you please give us your full name and your
13 occupation?
14 MR. HENNING: Gerald Henning,
15 acoustical engineer.
16 MR. FONSECA: Can you tell us how
17 long you've been engaged in the field of
18 acoustical engineer?
19 MR. HENNING: Over 30 years.
20 MR. FONSECA: And do you recall,
21 we have Applicant's Exhibit Number 1. Do you
22 have a copy of the October 27, 2010 sound
Neal R. Gross and Co., Inc. 202-234-4433 Page 86 1 measurements that you took for it?
2 MR. HENNING: Yes.
3 MR. FONSECA: Yes, that would be
4 there. You don't need my copy?
5 MR. HENNING: Right.
6 MR. FONSECA: Okay. And would you
7 take us back in time to when you were engaged
8 to perform this, these sound measurements, and
9 how you went through that process?
10 MR. HENNING: We set the system
11 sound level in the lounge at a level which I
12 measured at 92 dBa. And then --
13 MR. FONSECA: Say that again? Was
14 it 92?
15 MR. HENNING: Yes. It was about
16 92 dBa. And it was measured based on having
17 like a five minute loop of music that was just
18 played over and over again. And we took like
19 a four minute average of that music, walking
20 around the space, you know, no closer than
21 five feet from the loudspeaker. So that's how
22 we measured it in the lounge. And then we
Neal R. Gross and Co., Inc. 202-234-4433 Page 87 1 went to the Jefferson Row Condominium.
2 MR. FONSECA: Could I just stop
3 you there? Is that typical of how you would
4 do noise reading measurements when you're
5 dealing with music?
6 MR. HENNING: When you're dealing
7 with a source that is varying, then that's a
8 good way to do it --
9 MR. FONSECA: Okay.
10 MR. HENNING: -- is to do an
11 average level of that nature.
12 MR. FONSECA: Okay. Continue, if
13 you would.
14 MR. HENNING: So after
15 establishing what the level was in the lounge,
16 we then went over to the condominium units,
17 and we measured inside. We measured both with
18 the music playing, and the rooftop closed.
19 We measured it with the music
20 playing and the rooftop half open. And then
21 we measured with the music playing and the
22 rooftop, you know, fully retractable to the
Neal R. Gross and Co., Inc. 202-234-4433 Page 88 1 extent that it could be.
2 MR. FONSECA: Before you did that,
3 did you take any baseline readings?
4 MR. HENNING: Well, we did take
5 baseline readings too, without the music
6 playing. And we took those at the lame
7 locations we took the measurements of the
8 music.
9 MR. FONSECA: Can you identify
10 where the locations were when you were taking
11 these measurements? This would be at the
12 Jefferson Row Condominiums, correct?
13 MR. HENNING: Yes. Units 13 and
14 20. And also, Unit 20 had an outdoor terrace.
15 And we also measured on that. So we measured
16 inside two units, and then outside on the
17 terrace.
18 MR. FONSECA: Did you take any
19 other affirmative actions to reduce any kind
20 of outside, you know, noises, mechanicals,
21 anything like that, while you were taking your
22 tests?
Neal R. Gross and Co., Inc. 202-234-4433 Page 89 1 MR. HENNING: No. I mean, noises,
2 you know, it's an environment with varying
3 noises. Of course, there's street noise,
4 traffic noise, you know, other. There's
5 mechanical equipment that some of it stays,
6 some of it comes on and off.
7 So, you know, the idea was to
8 measure the music levels, you know, where we
9 didn't have anything unusual happening in
10 terms of the background noise level. And then
11 try to measure the background noise level in
12 a similar type condition.
13 So things, you know, if there was
14 some unusual thing that happened where, you
15 know, if a truck or something, you know, was
16 honking its horn, or something like that, we
17 didn't use that in this. It was, you know,
18 trying to get sort of a typical, kind or
19 relatively quiet background level.
20 And then trying to measure the
21 music when we were in that kind of condition.
22 And inside we took the further step of turning
Neal R. Gross and Co., Inc. 202-234-4433 Page 90 1 off the HVAC system, heating, ventilation, air
2 conditioning equipment that served the units,
3 so that we can get, so that wasn't part of the
4 background level that we measured.
5 So the only thing really was
6 whatever else was around in that area,
7 transmitted through the windows, and so forth.
8 That represented the background level, but did
9 not include the equipment of the, you know,
10 heating/cooling equipment of the individual
11 units.
12 MR. FONSECA: And your results?
13 Well, at that same time were there any other
14 establishments that had music being played?
15 MR. HENNING: Yes. I don't know
16 if I can remember the names precisely. But,
17 you know, there were other. Well, I don't
18 know. I'm not sure about that now, at this
19 point.
20 I recall when we did the
21 measurements that we were able to determine
22 that it was, you know, the Ozio sound level.
Neal R. Gross and Co., Inc. 202-234-4433 Page 91 1 But I can't say for sure whether there was any
2 other establishments.
3 MR. FONSECA: Do you know what
4 their baseline numbers were, before you, when
5 you were at -- Were those recorded in the
6 report?
7 MR. HENNING: The baseline
8 numbers?
9 MR. FONSECA: Yes, the baseline
10 numbers. Before you then recorded inside and
11 outside?
12 MR. HENNING: Yes. There's a
13 table at the end of the report that documents
14 the levels, like I say with the three
15 conditions, the roof open, half open, and
16 closed with the music playing. And then the
17 background ambient noise level at those
18 locations, without the music.
19 MR. FONSECA: Okay.
20 MR. HENNING: And so, you know,
21 what we found was that at that level of around
22 90, 92 dBa, the levels at these locations
Neal R. Gross and Co., Inc. 202-234-4433 Page 92 1 were, the music levels were dominated by the
2 background ambient noise. Or the ambient
3 noise interfered to an extent that we couldn't
4 really determine what the music levels were.
5 In any case, it represented a
6 condition where the music was just kind of
7 part of the background. And that's what can
8 be seen from the table of values, you know.
9 We show the values that were measured both
10 with and without the music.
11 And, you know, in conformance with
12 the way the D.C. Noise Code is, if there's not
13 a difference between, of at least four
14 decibels between the background noise level
15 and the level of the source, then you can't
16 really determine the level of the source,
17 because, you know, it's so close to the
18 background level.
19 MEMBER SILVERSTEIN: Could you say
20 that again, sir?
21 MR. HENNING: Yes. If the
22 difference between the background level and
Neal R. Gross and Co., Inc. 202-234-4433 Page 93 1 the level you measure with the source is less
2 than four decibels, then there's no way to
3 really extract and determine in a fairly
4 accurate way what the source noise level is.
5 Because the two are adding together.
6 And just for, you know, to give
7 you the concept, if you have two sources that
8 are the same level and same type of noise,
9 they will add together to increase the level
10 three decibels. So for instance, if you have,
11 you know, one source that's 60, and you turn
12 on another source exactly the same source at
13 60, so you have two of them operating, that
14 noise will add together to give you 63.
15 So it just means that, you know,
16 when you don't, when the level between the
17 background and the source is less than four,
18 then you're getting so close to together, it's
19 hard to, you know, extract the source level
20 out from the combined level.
21 MR. FONSECA: Thank you. Is it
22 fair to say then, if the source levels were
Neal R. Gross and Co., Inc. 202-234-4433 Page 94 1 already above 60 decibels -- Not the source,
2 I'm sorry, the background level was already
3 above 60 decibels, would you have to then
4 exceed four decibels from the source to have
5 an arguable Noise Control Act violation?
6 MR. HENNING: Correct.
7 MR. FONSECA: So an example would
8 be, if the background level is at 68, you'd
9 have to hit 72 and above with your source
10 being identified as what's increasing the
11 combined sound?
12 MR. HENNING: Right. It's four, I
13 think it's four or above four. But it's right
14 there.
15 MR. FONSECA: Thank you on that.
16 Can you describe what instrument, what
17 measurement instrument you used?
18 MR. HENNING: It was a Rion
19 precision sound level meter, integrating sound
20 level meter. It's the highest field precision
21 type instrument, which is a Type 1. I believe
22 the Code allows less accurate instruments of
Neal R. Gross and Co., Inc. 202-234-4433 Page 95 1 Type 2.
2 And so, it's an instrument where
3 you can take an average over time. And it
4 will do that for you. It's not something that
5 you have to just, you know, look at a display,
6 or a needle, or something like that. You can,
7 you know, take basically an average level over
8 a time period.
9 MR. FONSECA: And is that how you
10 did all of your measurements that resulted in
11 this October 27, 2010 report?
12 MR. HENNING: Yes. And then, you
13 know, we compared them to the Noise Code,
14 which is 60 decibels, not less than one meter.
15 You know, you can be further away than a
16 meter. But the Code says not less than a
17 meter.
18 MR. FONSECA: Do you recall at
19 that time the reason why we were doing the
20 measurements not at one meter from the
21 building, but over at the residence?
22 MR. HENNING: Well, I mean, that's
Neal R. Gross and Co., Inc. 202-234-4433 Page 96 1 the logical location to take readings, is
2 where somebody could be disturbed by the
3 sound.
4 MR. FONSECA: Right.
5 MR. HENNING: So, I mean, nobody's
6 going to be disturbed in a back alley. But
7 they will in their units. They will on their
8 terrace. And so that seemed to be the
9 appropriate location to take the measurements
10 and, you know, evaluate them.
11 MR. FONSECA: Thank you. Do you
12 recall when this, you established as your base
13 for the source at 92, whether that was
14 exceedingly loud just in general for you?
15 MR. HENNING: Well, you know, to
16 put it in perspective it's, you know, if the
17 OSHA Code for maximum sound level during an
18 eight hour day is 90. So 92 is a little above
19 that or, you know, right around there. So
20 it's a pretty, you know, it's a pretty decent
21 level compared to that.
22 Keeping in mind that conversation
Neal R. Gross and Co., Inc. 202-234-4433 Page 97 1 level is generally about 60, you know, raised
2 voiced, you know, may be up around 70, 75.
3 Three feet away from a person speaking and,
4 you know, a shout three feet away is about 90.
5 So 90 is, you know, a pretty loud level.
6 MR. FONSECA: Are you familiar
7 with what the District of Columbia's sound
8 meters, what type they have, compared to what
9 you were using?
10 MR. HENNING: Well, I had
11 information of what type was used by someone
12 who I just borrowed the meter to take some
13 readings. Yes. And it's a Type 2 meter.
14 Again, what we used was Type 1, which is, you
15 know, higher precision.
16 But, I mean, Code allows Type 2.
17 And I don't know whether or not it had any
18 kind of data logging, or ability to average.
19 I think that meter has the optional capability
20 of data logging. But I don't know if the
21 specific ones that the D.C. Government has
22 have that capability.
Neal R. Gross and Co., Inc. 202-234-4433 Page 98 1 MR. FONSECA: Can you describe,
2 you said that you had, you did it on a slow
3 version so that it waited. Could you explain
4 that, just to be clear?
5 MR. HENNING: Well --
6 MR. FONSECA: How you took the
7 measurements?
8 MR. HENNING: When you're taking
9 an average reading, you know, it basically
10 integrates the sound over a time period. And
11 there's different kinds of response times one
12 can set on a meter.
13 If you're going to do just sort of
14 a individual type level where you can monitor
15 it instantaneously, then the code tells you
16 you should use a slow response. And that
17 allows the needle, or the display to not
18 fluctuate as much.
19 It allows, you know, actually a
20 better reading of the meter. And doesn't
21 overinflate the sound levels that you would
22 measure, relative to the Code. Averaging, it
Neal R. Gross and Co., Inc. 202-234-4433 Page 99 1 doesn't really matter. And if you're taking
2 individual readings then the response should
3 have, in terms of the D.C. Noise Code, it's
4 the slow response.
5 MR. FONSECA: And what would a
6 fast response do?
7 MR. HENNING: Well, it just
8 responds more quickly to sound. So if there's
9 say a higher level, you know, momentary higher
10 level, it would read a higher level on the
11 meter, than if you had a slow response.
12 MR. FONSECA: Okay. So, could a
13 meter, you know, spike to 101 and then drop
14 back down to 85?
15 MR. HENNING: Yes, I mean,
16 depending on what the sound level was doing.
17 You know, that's the difference in the
18 response times. The response time on the fast
19 type setting is like one eighth of a second.
20 Whereas, the response time of the slow setting
21 is one second.
22 So you can see that if something
Neal R. Gross and Co., Inc. 202-234-4433 Page 100 1 is responding eight times more quickly, you
2 can get a higher level when you've just got a
3 momentary, you know, peak in the level.
4 MR. FONSECA: Okay. Did you have
5 occasion to return and do some measurements as
6 a result of this protest hearing?
7 MR. HENNING: Yes.
8 MR. FONSECA: And when did you
9 take those readings, and where?
10 MR. HENNING: It was last Friday.
11 And basically I took them near the Ozio
12 establishment. Similar, at least some cases
13 to what was taken by a Mr. Nelson.
14 And they were taken in the back of
15 the establishment on the, sort of the west
16 side of the building and parking, that whole
17 parking area there. And about, you know,
18 three to four feet away from the building we
19 measured. And then out in front of the
20 establishment, about three to four feet in
21 front of the establishment.
22 We also measured inside to
Neal R. Gross and Co., Inc. 202-234-4433 Page 101 1 document what the level was that we were, was
2 playing inside when we were measuring outside
3 these locations.
4 MR. FONSECA: And did, what did
5 you establish as a baseline for outside
6 ambience?
7 MR. HENNING: Well again, it's
8 varying. And so again --
9 MR. FONSECA: What time of day was
10 this when this was occurring?
11 MR. HENNING: This was in the
12 afternoon, you know, basically from about, you
13 know, 2:00 p.m. to 5:30 p.m.
14 MR. FONSECA: Well, what was your
15 baseline findings, even if they were in a
16 span?
17 MR. HENNING: Yes. Well, in front
18 of the establishment, where there's a lot of
19 traffic and so forth, we're measuring probably
20 about 68 dBa, something like that, you know,
21 66, in that range, on an average basis.
22 And in the back, in the alley on
Neal R. Gross and Co., Inc. 202-234-4433 Page 102 1 the west side of the building it tended to be
2 around 60, you know. Sometimes it was over
3 60. But, and then near the end of the survey
4 it actually got a little quieter. So it was
5 a little bit under 60. But it was around that
6 level.
7 MR. FONSECA: And how did you
8 establish the source level? And was that
9 again with a loop?
10 MR. HENNING: Yes. We did a
11 similar thing, looped five minutes, sample the
12 music, measured inside, as I described before.
13 Just, you know, trying to get a general level
14 in the room, you know, probably five or ten
15 feet away from the speakers, walking around
16 the floor.
17 And then measured, you know,
18 averages. And then sometimes just sort of
19 instantaneous slow weighted sound levels
20 outside the building.
21 MR. FONSECA: And what was the
22 source level then of the music?
Neal R. Gross and Co., Inc. 202-234-4433 Page 103 1 MR. HENNING: Well, at about 88 we
2 took a set of readings outside the
3 establishment. That was a reading, a level
4 that was kind of set as, I guess a fairly loud
5 level for what they, how they play the music
6 in the lounge. And so we just established
7 what that level was after the establishment
8 adjusted that level.
9 MR. FONSECA: Just to be clear,
10 because when you say lounge I want to make
11 sure we identify it. Was this on the third
12 floor rooftop area?
13 MR. HENNING: The rooftop lounge,
14 yes?
15 MR. FONSECA: Okay.
16 MR. HENNING: And then, you know,
17 once we had measured that level, then we went
18 out and measured outside of the building.
19 MR. FONSECA: And was it in both
20 locations, front and on the, in the rear west
21 side?
22 MR. HENNING: Yes.
Neal R. Gross and Co., Inc. 202-234-4433 Page 104 1 MR. FONSECA: And do you have the
2 results from that?
3 MR. HENNING: With the roof closed
4 we measured about 68 outside the front, and
5 about 64 in the back rear of the building.
6 This is with the roof closed.
7 MR. FONSECA: Sixty-eight on the
8 front, and then 64 on the rear?
9 MR. HENNING: Right. But the
10 noise level in the front we couldn't even hear
11 the music. And it was basically turned by the
12 traffic noise.
13 MR. FONSECA: I see. So the 68
14 was because of just the ambient sound?
15 MR. HENNING: Right.
16 MR. FONSECA: So you consider that
17 a wash then?
18 MR. HENNING: Yes. I mean, it was
19 pretty much, even with the music running,
20 operating, we're still just measuring the
21 background level and, you know, traffic and
22 stuff. In the back of the establishment, the
Neal R. Gross and Co., Inc. 202-234-4433 Page 105 1 back west side, there was noticeable
2 background level.
3 But you can hear the music above
4 the background, because in one, to some extent
5 because the character of the sound is
6 different. You know, it has a different kind
7 of frequency character.
8 And you can distinguish sounds of
9 different character, even though they may, the
10 level be about the same or, you know, one may
11 be below the other one. You can still
12 distinguish between the sound levels by the
13 character.
14 MR. FONSECA: I understand. Okay.
15 And that's with the roof closed. What about
16 with the roof open?
17 MR. HENNING: With the roof
18 opened, in the back part it was about 70 dBa,
19 the back west side of the building, in that
20 parking area.
21 MR. FONSECA: Any difference on
22 the front?
Neal R. Gross and Co., Inc. 202-234-4433 Page 106 1 MR. HENNING: I don't think we
2 even measured there. In fact, on the back it
3 was, you know, just more of an instantaneous
4 level like, you know, looking at the meter and
5 saying, oh, well, it looks like it's about 70.
6 MR. FONSECA: So is it fair to say
7 then that when they have the roof open that a
8 level for them to note is to keep it below 88
9 on the source level? And with the roof closed
10 not maxed past 88?
11 MR. HENNING: Right, with the roof
12 closed.
13 MR. FONSECA: Right. And is that
14 your recommendation to the establishment?
15 MR. HENNING: Well, if you want to
16 try to meet, you know, about 60 outside the
17 establishment, again, the D.C. Noise Code is
18 not less than a meter. So you can be further
19 away. So it depends on how you interpret, you
20 know, where you want to measure. Because
21 again, the alley is not a sensitive location.
22 MR. FONSECA: Tell me, when you
Neal R. Gross and Co., Inc. 202-234-4433 Page 107 1 were taking the test, the testing, and the
2 roof was open, were you communicating with
3 them to get them to a point where they would
4 lower the volume, so they would come below
5 that 70 and bring it back into line with the
6 Noise Control Act?
7 MR. HENNING: Correct. Yes,
8 that's basically what we did after we did the
9 measurements for the roof closed. You know,
10 we opened it up and then, you know, we started
11 at 88, and then turned the level down, so they
12 would know what level to adjust.
13 So that they wouldn't exceed 60,
14 you know, at that distance of about, you know,
15 three or four feet away from the building face
16 and that parking area on the west side of the
17 building.
18 MR. FONSECA: Thank you. No
19 further questions.
20 MEMBER ALBERTI: Ms. Peck.
21 MS. PECK: Just to finish that
22 thought, and what was that level that they
Neal R. Gross and Co., Inc. 202-234-4433 Page 108 1 want to play it with the roof open, and not
2 exceed 60 decibels out there? What is the
3 level that you recommended?
4 MR. HENNING: Well, I didn't
5 actually bring back up the measure in the
6 lounge. I measured outside. And then when
7 they got it down to a point where it was at
8 the limit, I told them, okay, that's as loud
9 as you can have it and be at a 60 limit in
10 that location.
11 MS. PECK: With the roof shut?
12 MR. HENNING: With the roof open.
13 MS. PECK: Okay. So what I
14 understood you to say is, at 88 decibels,
15 which is four decibels lower than the sound
16 test you did in 2010, they were still
17 registering 70 decibels in that alcove.
18 MR. HENNING: No.
19 MS. PECK: Okay.
20 MR. HENNING: With the roof closed
21 --
22 MS. PECK: With the roof open.
Neal R. Gross and Co., Inc. 202-234-4433 Page 109 1 Sorry.
2 MR. HENNING: Oh, okay.
3 MS. PECK: With the roof open.
4 MR. HENNING: Oh, with the roof
5 open, yes.
6 MS. PECK: Okay. Which is how
7 they like to operate in nice weather, right?
8 I'm assuming that that's correct. So my
9 question for you is, at 88 decibels with the
10 roof open, they were measuring 70 decibels in
11 the alcove behind the building? That's ten
12 decibels over the ambient sound level that you
13 took.
14 And given the statement of law you
15 made earlier, that anything over four decibels
16 is a violation of the law, operating at 88
17 with the roof open, using your measurements,
18 would be a violation of the law.
19 MR. HENNING: All depends on the
20 distance.
21 MS. PECK: At that spot, that's
22 the closest you could get. You didn't bring
Neal R. Gross and Co., Inc. 202-234-4433 Page 110 1 your ladder or your helicopter. Then that's
2 the best you could do. You're saying right
3 there on that spot there was a ten decibel
4 spread. And that would be a violation of the
5 noise ordinance.
6 MR. HENNING: No. I didn't say
7 that. Because it depends on where you
8 measure. The ordinance says --
9 MS. PECK: Did you measure three
10 feet away, sir? Did you measure three feet
11 away from the roof?
12 MR. HENNING: I measured three or
13 four feet away from --
14 MS. PECK: From the roof?
15 MR. HENNING: No. From the wall.
16 MS. PECK: Okay. So the closest
17 you could get was on the ground?
18 MR. HENNING: But the Code says,
19 not less than a meter.
20 MS. PECK: Okay. So we're talking
21 about a pretty good place, right there in the
22 alley. All I'm saying is, there was a ten
Neal R. Gross and Co., Inc. 202-234-4433 Page 111 1 decibel spread between the ambient level you
2 took right there, and what the sound level was
3 when it was played at 88 decibels. It was 70
4 down there.
5 MR. HENNING: Correct.
6 MS. PECK: And if it were 92,
7 based on your professional experience, how
8 much higher would it be?
9 MR. HENNING: Four higher.
10 MS. PECK: Four higher. Okay. So
11 it would be 74?
12 MR. HENNING: Correct.
13 MS. PECK: At 92?
14 MR. HENNING: Right.
15 MS. PECK: And do you know if they
16 have anything in place that prevents them from
17 playing louder than 92?
18 MR. HENNING: I don't know.
19 MS. PECK: Did you look at their
20 equipment?
21 MR. HENNING: Not in detail.
22 MS. PECK: But you would know if
Neal R. Gross and Co., Inc. 202-234-4433 Page 112 1 you saw a regulator that prevented them from
2 turning it up higher?
3 MR. HENNING: Well, even that,
4 it's not going to really say much, because
5 they can adjust it.
6 MS. PECK: That's right. But they
7 didn't have one of those on there?
8 MR. HENNING: I don't know. I
9 didn't inspect it.
10 MS. PECK: Okay. You said earlier
11 that, well your report made a conclusion. You
12 correctly stated the law. You said that the
13 music levels should not exceed 60 decibels
14 within three feet of the establishment, one
15 meter, which is essentially --
16 MR. HENNING: No, that's not what
17 it says.
18 MS. PECK: Well --
19 MR. HENNING: This is not less
20 than one meter. It's not within one meter,
21 it's not at one meter. Because it says not
22 less than.
Neal R. Gross and Co., Inc. 202-234-4433 Page 113 1 MS. PECK: Okay. So in other
2 words, they don't want you to smash your face
3 up against the building. But they also don't
4 want you to be 160 feet away to determine
5 whether you're hitting 60 decibels.
6 MR. HENNING: Well, you may want
7 to be at the location where somebody would
8 complain about it, instead of in the back
9 alley --
10 MS. PECK: Okay.
11 MR. HENNING: -- where nobody's
12 going to complain.
13 MS. PECK: Okay. Well, the
14 express letter of the law, you would agree,
15 does say not less than one meter outside?
16 MR. HENNING: Correct.
17 MS. PECK: Okay. When you take
18 the sound measurements, do you want to tell us
19 how far away you think the --
20 MEMBER ALBERTI: Wait, Ms. Peck,
21 Ms. Peck --
22 MS. PECK: I'm just, I'm trying to
Neal R. Gross and Co., Inc. 202-234-4433 Page 114 1 -- We don't have a distance.
2 MEMBER ALBERTI: Just continue.
3 You'll have to --
4 MS. PECK: I'm going to, I'll just
5 say --
6 MEMBER ALBERTI: You'll have to
7 come up with your own measurement.
8 MS. PECK: I will tell you, it's
9 about a half block away. It's about 160 feet.
10 Is that roughly in the range that you think
11 you were operating? I mean, on the roof of
12 the Jefferson Row Condominiums?
13 MR. HENNING: Yes. That's
14 somewhere in there. I don't know exactly.
15 But yes.
16 MS. PECK: Okay. So on your
17 report, rather than taking the measurement
18 near the establishment, you took it at the
19 residence. And you made a conclusion that,
20 under your evaluations, you say that those
21 music levels there slightly exceeded 60
22 decibels when the roof was open.
Neal R. Gross and Co., Inc. 202-234-4433 Page 115 1 Therefore, the measurements
2 indicate that the average Ozio music levels do
3 not exceed the maximum permissible level of 60
4 decibels under the D.C. Code. That was in
5 your report, on Page 3 at the bottom.
6 MR. HENNING: I said, although
7 some maximum levels may have slightly
8 exceeded.
9 MS. PECK: Okay.
10 MR. HENNING: So the problem was,
11 the music was not loud enough to get above the
12 ambient to really make an accurate
13 determination.
14 MS. PECK: But if you had taken it
15 as the statute says, three feet away --
16 MR. HENNING: It doesn't say that.
17 MS. PECK: -- you wouldn't -- Well
18 --
19 MR. HENNING: It says, not less
20 than one meter.
21 MS. PECK: Okay. Well, I'll take
22 your testimony on that. And I, of course,
Neal R. Gross and Co., Inc. 202-234-4433 Page 116 1 disagree.
2 MR. HENNING: Okay.
3 MS. PECK: The statute is trying
4 to enforce the requirement for businesses to
5 keep their sound inside. But my question for
6 you is, at that distance, if Ozio had been
7 playing at 88 or a lower level, could you have
8 heard it at the location on Jefferson Row
9 terrace?
10 MR. HENNING: I don't know.
11 MS. PECK: You don't know?
12 MR. HENNING: Right.
13 MS. PECK: If it was to say it was
14 88 decibels, we're talking 160 feet away, and
15 you are a sound engineer with 30 years
16 experience, you can't come up with some sort
17 of expert estimate on what you expect to hear
18 160 feet away?
19 MR. HENNING: Well, I mean, for
20 one thing, it depends on what the ambient is
21 at that time. The higher --
22 MS. PECK: Well let's just take,
Neal R. Gross and Co., Inc. 202-234-4433 Page 117 1 stipulate that for the purposes of this
2 hypothetical it would be 64 decibels.
3 MR. FONSECA: Objection. Now
4 we're mixing apples and oranges. That's at
5 ground level, not at the fifth or sixth floor.
6 MS. PECK: Well he says on his
7 chart on Page 4, he gives the background
8 ambient sound level of that terrace a 62. So
9 what do you say?
10 MEMBER ALBERTI: Wait, wait, wait,
11 let's pause. Do you want to respond again?
12 MR. FONSECA: Yes. I just, your
13 attempting to fit -- You've got your own
14 witnesses. You're attempting to fit his
15 testimony into a different format from when he
16 was taking measurements at another time, at
17 another location --
18 MEMBER ALBERTI: Mr. Fonseca, I'm
19 going to have to disagree. I'm going to
20 overrule. I think it's very clear she's
21 referring the ambient noise levels back in
22 2010 that are on this chart here. And using
Neal R. Gross and Co., Inc. 202-234-4433 Page 118 1 those as to hypothetical. Am I right, Ms.
2 Peck?
3 MS. PECK: Right.
4 MEMBER ALBERTI: Well, that's our
5 basis here.
6 MR. FONSECA: Okay.
7 MEMBER ALBERTI: So, with that,
8 please proceed.
9 MS. PECK: Thank you. What I'm
10 trying to establish here is, here you're
11 talking about using 62 as the ambient setting.
12 And you're saying that you could hear somewhat
13 the music on the terrace. And you also report
14 that you could somewhat hear it inside the
15 apartments at 92 decibels.
16 MR. HENNING: Correct.
17 MS. PECK: If the decibel levels
18 were turned down to, let's say 88, which is
19 the measurement you just took, do you think
20 you could hear them at that location with
21 those ambient levels?
22 MR. HENNING: I don't know. I
Neal R. Gross and Co., Inc. 202-234-4433 Page 119 1 mean, outside, I mean, it's certainly
2 possible. And certainly, I'm not saying it's
3 feasible. But whether it actually could or
4 not, it's a little hard to say.
5 MS. PECK: But based on this
6 report, you recommended that the levels that
7 you were testing comply with the statute, is
8 that correct? Is that what the meaning of
9 this report was?
10 MR. HENNING: Well, I mean, I
11 think it had more meaning than that. Because
12 we were measuring inside the units. So, I
13 mean, if you were just looking at the statute,
14 you would just be measuring outside.
15 But we looked at both locations,
16 because there was a concern about, you know,
17 people being disturbed by the sound. So it
18 was more encompassing than just that. But
19 outside, on the terrace, you know, that's
20 where you can directly compare, you know,
21 voice levels to that noise code, assuming you
22 could measure them accurately.
Neal R. Gross and Co., Inc. 202-234-4433 Page 120 1 MS. PECK: Okay. I have no
2 further questions.
3 MEMBER ALBERTI: Thank you, Ms.
4 Peck. Questions from the Board Members? I
5 guess I will, I've got a few. Okay, Mr.
6 Henning, did you do the sound measurements in
7 2010?
8 MR. HENNING: Yes.
9 MEMBER ALBERTI: Okay. So we
10 heard reference to Apartment Unit 13, and Unit
11 20. I have no idea where they are in this
12 building. Do you remember where they are in
13 this building? If you don't, that's all
14 right, maybe someone else can tell me.
15 MR. HENNING: The unit with the
16 terrace, which I think was 20, was on the, I
17 guess it would be the north side, northeast
18 corner of Jefferson Row Condominiums. And
19 then the other unit, Unit 13, was on the side
20 of the building which was adjacent to the
21 alley, that runs in back of the Ozio
22 establishment.
Neal R. Gross and Co., Inc. 202-234-4433 Page 121 1 MEMBER ALBERTI: Okay. So let me
2 understand this. Unit 13 would have been on
3 the alley. So the alley you're talking about
4 is the alley that goes east west?
5 MR. HENNING: Yes.
6 MEMBER ALBERTI: All right. So 13
7 would have been facing that alley? Unit 13
8 was facing that alley? And Unit 20 would have
9 faced Jefferson Street, Jefferson?
10 MR. HENNING: Twenty, I think
11 would have occupied that whole east side of
12 the condominium. Because I remember measuring
13 in the unit.
14 MEMBER ALBERTI: Okay.
15 MR. HENNING: But if it, the
16 terrace was on I think the northeast corner of
17 that.
18 MEMBER ALBERTI: So did the
19 terrace have an unobstructed view of Ozio,
20 sort of?
21 MEMBER ALBERTI: In locations,
22 yes.
Neal R. Gross and Co., Inc. 202-234-4433 Page 122 1 MEMBER ALBERTI: Okay. All right.
2 So, this is sort of -- If you can't answer
3 this tell me. I mean, was there buildings
4 that, were there buildings surrounding it that
5 would have buffered the sound coming to that
6 unit? Or was it pretty much you had a -- I
7 don't know how you would say it, sort of
8 direct shot at it?
9 MR. HENNING: Right. For the
10 terrace I believe it was a direct shot. To
11 the units, you know, where I measured inside,
12 I'm not sure about that.
13 MEMBER ALBERTI: Okay.
14 MR. HENNING: I don't know. I
15 know there was, when I reported in my report,
16 there was some pile of lumber on one building
17 that was sticking up, blocking some view of
18 the Ozio establishment.
19 MEMBER ALBERTI: Very good. Thank
20 you. That gives me some idea. Again, can you
21 tell me, when you did these measurements, I
22 guess last Friday was it? Is that correct?
Neal R. Gross and Co., Inc. 202-234-4433 Page 123 1 MR. HENNING: Correct.
2 MEMBER ALBERTI: Can you again
3 tell me what the ambient levels were in the
4 various places, various locations?
5 MR. HENNING: Out in front it was
6 you know, around 68. But of course, that's
7 going to vary quite a bit with the traffic,
8 and so forth. And again, I try to get
9 something that's kind of typical, and not, you
10 know, something real loud wherever I measure.
11 MEMBER ALBERTI: Right.
12 MR. HENNING: And in the back it
13 was around 60. Sometimes a little above,
14 sometimes below, on the average.
15 MEMBER ALBERTI: Okay. Very good.
16 Okay, this shows my ignorance about sound
17 measurements. Table 2, how is that
18 constructed? I mean, you've got different
19 frequencies and different sound levels here.
20 How is this constructed?
21 MR. HENNING: Okay. There's
22 basically two kinds of measurements that you
Neal R. Gross and Co., Inc. 202-234-4433 Page 124 1 see in the table. One is the A-weighted --
2 MEMBER ALBERTI: One is the what?
3 MR. HENNING: -- for dBa.
4 MEMBER ALBERTI: Okay.
5 MR. HENNING: And that is
6 relatable to the dBa A-weighted sound level in
7 the D.C. Code.
8 MEMBER ALBERTI: Right.
9 MR. HENNING: The second set of
10 numbers is, the instrument that I measured
11 with breaks up the sound into frequency bands.
12 And to the frequency bands you can obtain a
13 level.
14 So, for instance, at 32 that
15 represents the center frequency of the octave
16 band 32 Hz. And then like 63, that's the
17 center frequency of the next octave band. And
18 then so forth. So what you have is basically
19 a spectrum of the noise.
20 And from this you can see what the
21 lows were relative to the high frequencies,
22 you know. And people talk about, you know,
Neal R. Gross and Co., Inc. 202-234-4433 Page 125 1 bass sounds and high frequency sounds.
2 MEMBER ALBERTI: Right.
3 MR. HENNING: So, bass sounds are
4 more in the range of 32 to 125 Hz. And then,
5 you know, as you get 1,000 Hz it's kind of
6 like in the middle of our hearing range. It's
7 the tone that you hear from emergency vehicles
8 most of the time. That's about 1,000 Hz. And
9 then as you get up in frequency then the
10 tones, the pitch gets higher.
11 MEMBER ALBERTI: Okay. But does
12 your instrument do this for you?
13 MR. HENNING: Yes.
14 MEMBER ALBERTI: Okay. So that
15 instrument we talked about earlier will give
16 you those types of readings?
17 MR. HENNING: Correct.
18 MEMBER ALBERTI: Okay. Great. I
19 have no further questions. Any other Board
20 Members? Mr. Jones?
21 MEMBER JONES: Thank you, Mr.
22 Chair. Let's see. So, just to make sure I'm
Neal R. Gross and Co., Inc. 202-234-4433 Page 126 1 on the same page, the report that you prepared
2 October 27th of 2010, the objective of that?
3 If you could just, I know it's
4 written to some degree in the report. But
5 what was the objective of the report when you
6 were contracted to perform this activity?
7 MR. HENNING: Basically to follow
8 this test procedure and document what we
9 measured.
10 MEMBER JONES: Okay. Were you
11 given a test procedure? Or did you generate
12 that?
13 MR. HENNING: I generated based on
14 the purpose of trying to compare measurements
15 to the background levels, and to the D.C.
16 Code.
17 MEMBER JONES: Who gave you the
18 requirements that you were testing to, that
19 fostered the generation of the test procedure?
20 They were given to you by whom?
21 MR. HENNING: Well, there wasn't
22 any kind of precise direction in terms of,
Neal R. Gross and Co., Inc. 202-234-4433 Page 127 1 okay, well, you know, we want to set it at
2 this level. It was, okay, this is what we
3 think is a reasonable level. And then we
4 measured it and reported the results.
5 MEMBER JONES: Let me, I guess I'm
6 probably not asking a good question. So, you
7 were contracted to perform and activity?
8 MR. HENNING: Right.
9 MEMBER JONES: Was there, were you
10 given requirements as to how to perform that
11 activity? Or were you given an objective as
12 to what the intended purpose or outcome of the
13 report was, or supposed to be?
14 MR. HENNING: Well, the purpose
15 was to evaluate the levels that were being
16 generated at the Jefferson Row Apartment, to
17 evaluate them. So, you know, we have to start
18 with a level that's generated in the lounge.
19 MEMBER JONES: Right.
20 MR. HENNING: And I don't know
21 actually how it ended up being that level. It
22 may have been, okay, well this is what we like
Neal R. Gross and Co., Inc. 202-234-4433 Page 128 1 to play it at. And let's see what it is at
2 the residence. I mean, it could have been
3 just something like that.
4 MEMBER JONES: Okay. So was one
5 of the objectives, as you recall, to make a
6 determination as to whether or not the
7 preferred level, as established or set by the
8 establishment, was within compliance with what
9 your understanding of Code was?
10 MR. HENNING: Yes. I'm not sure
11 if that's exactly. I'm not sure if it was the
12 preferred level. But it was a level that was
13 set. And we evaluated that level.
14 MEMBER JONES: Okay. Because
15 there's a lot of language or detail in your
16 report about what D.C. Code was, and/or is.
17 And you drew conclusions based on your
18 comparative measure against Code.
19 MR. HENNING: Right.
20 MEMBER JONES: Right? It wasn't
21 necessarily based on what was the comfort
22 level of an individual? It was strictly based
Neal R. Gross and Co., Inc. 202-234-4433 Page 129 1 on Code, and the perceptibility of the human
2 ear, as to what could or couldn't be heard
3 from the distinction of ambient sound?
4 MR. HENNING: No.
5 MEMBER JONES: Okay.
6 MR. HENNING: It went beyond that.
7 Because we measured the levels inside the
8 units. So it kind of really doesn't apply to
9 levels inside the units. It's an outside
10 measurement. So there isn't anything you can
11 measure in the units and say, okay, well, this
12 meets or exceeds Code.
13 So what we did was, we measured
14 the level of the music, and compared it to the
15 background level. And that's a reasonable way
16 to evaluate noise, no matter if there's a Code
17 or not a Code.
18 MEMBER JONES: Okay. Fair enough.
19 So, to your knowledge, there's no governing
20 rule or regulation within the District of
21 Columbia that speaks to what should the level
22 be per inside of a residence?
Neal R. Gross and Co., Inc. 202-234-4433 Page 130 1 MR. HENNING: Correct.
2 MEMBER JONES: Okay. The
3 measurements that you took in your report
4 dated the 27th of 2010 there's the Table 1.
5 And in Table 1 you have a background ambient,
6 and I'm specifically focused on Unit 20, the
7 outdoor terrace.
8 MR. HENNING: Okay.
9 MEMBER JONES: So I'm looking at
10 this table. Is it fair to say that the, in
11 order for me to understand or discern that
12 there was a perceptible issue that could be
13 identified to be associated with Ozio, that
14 the dB level, delta, needed to be 4 dB or
15 more, dBa, excuse me?
16 MR. HENNING: Correct. In order
17 to be able to extract the music level from the
18 background level.
19 MEMBER JONES: In order to extract
20 the music level from the background level?
21 MR. HENNING: Right.
22 MEMBER JONES: And if I can't
Neal R. Gross and Co., Inc. 202-234-4433 Page 131 1 extract the music level from the background
2 level then is it possible for me to identify
3 source of that sound, if I can't discern it
4 from the background level?
5 MR. HENNING: Well, you can
6 discern it because of the frequency character.
7 And you may or may not be able to determine
8 exactly where it's coming from.
9 From my experience there's a lot
10 of times where people say that, you know,
11 sound is coming from one club, and under
12 investigation it's not coming from that club.
13 So once it gets into the city and bounces
14 around the buildings, and everything --
15 MEMBER JONES: Right.
16 MR. HENNING: -- it's pretty hard
17 to figure out where it's coming from. But if
18 you're, you know, have a direct line of site,
19 then a lot of times it's easier.
20 MEMBER JONES: Okay.
21 MR. HENNING: But the further you
22 get into the background level the more
Neal R. Gross and Co., Inc. 202-234-4433 Page 132 1 difficult it is.
2 MEMBER JONES: The further you get
3 into the background level the more difficult
4 it is?
5 MR. HENNING: Yes.
6 MEMBER JONES: So what does that 4
7 dB really mean from a quality of life
8 standpoint, as you would interpret it? So, it
9 sounds like you're not saying I cannot, as if
10 I'm that individual in that same Unit 20.
11 It sounds like you're not telling
12 me that it's not that I wouldn't be able to
13 notice that it was music, or sounds that are
14 different from the ambient background noise.
15 It's just that it wouldn't be disturbing or
16 disruptive to me? I'm trying to understand
17 what that 4 dB really means.
18 MR. HENNING: Well, the 4 dB is
19 really, defines the method by which you can
20 determine the sound level of a source, and the
21 presence of a background noise. It's not
22 really beyond that.
Neal R. Gross and Co., Inc. 202-234-4433 Page 133 1 MEMBER JONES: Okay.
2 MR. HENNING: Okay? In terms of,
3 you know offering a qualitative aspect to it.
4 MEMBER JONES: Fair enough.
5 MR. HENNING: I mean, you can
6 extrapolate from that.
7 MEMBER JONES: Right.
8 MR. HENNING: And make some
9 judgments about that. But it's not there in
10 terms of any kind of qualitative way that
11 you're --
12 MEMBER JONES: Got it. So it
13 needs to be 4 dB or more for me to identify
14 that it exists beyond or outside of the
15 background, the ambient background?
16 MR. HENNING: It needs to be that
17 level before we can extract the background
18 from the combined level, to be able to say
19 what the source level is.
20 MEMBER JONES: Okay.
21 MR. HENNING: For example, you
22 know, if the background is 60, and then when
Neal R. Gross and Co., Inc. 202-234-4433 Page 134 1 the music is on and I measure 63, then that
2 means that the music is actually the same
3 level as the background. Because in my
4 previous example, where I went through --
5 MEMBER JONES: Right.
6 MR. HENNING: -- 60, and the other
7 60 gives you 63.
8 MEMBER JONES: Understood.
9 MR. HENNING: Okay.
10 MEMBER JONES: Okay. So, fair
11 enough. So, I'm looking at the table that you
12 have here. Is it fair to assume that all of
13 these measures were taken with the slow versus
14 fast response?
15 MR. HENNING: The table --
16 MEMBER JONES: Table 1, sorry.
17 MR. HENNING: Yes. These measures
18 were actually taken with fast. But it doesn't
19 matter when you're doing an average. You can
20 do, you know, with an average if you have it
21 fast or slow, it doesn't matter --
22 MEMBER JONES: Got it.
Neal R. Gross and Co., Inc. 202-234-4433 Page 135 1 MR. HENNING: -- in terms of the
2 average level. It's just when you're looking
3 at maximums or, you know, sort of an
4 instantaneous idea of what sound level it is.
5 MEMBER JONES: Understood. So in
6 Table 1 these were taken with fast. But it
7 was taken with, as an average weighted. Do
8 you have any, did you have an opportunity to
9 collect any information regarding that wasn't
10 average? That is, where you had the peaks?
11 MR. HENNING: Well I did take, I
12 did have some along with the average level,
13 some maximum levels at the different bands,
14 with fast.
15 MEMBER JONES: Is this in Table 2?
16 MR. HENNING: No. It's not in the
17 --
18 MEMBER JONES: Okay. So it's not
19 in this report?
20 MR. HENNING: No.
21 MEMBER JONES: Okay.
22 MR. HENNING: Because it's hard to
Neal R. Gross and Co., Inc. 202-234-4433 Page 136 1 identify what those maximums would be
2 generated by. Because, you know, you go
3 through this measurement interval. And then
4 at the end, you know, it has these maximums.
5 But it's not like you can
6 correlate the maximum of that sound with, of
7 that measurement with some sound that you've
8 heard. You just don't know what it is. So,
9 they're not too meaningful from standpoint,
10 especially when you're measuring levels that
11 are close to the background level.
12 MEMBER JONES: So how are you able
13 to correlate the average sounds as being let's
14 say from Ozio, if you are not able to
15 correlate the maximum sounds as being from
16 Ozio? I'm kind of --
17 MR. HENNING: Well, you can
18 understand things generally. I mean, you
19 know, in a lot of ways, you know, our ears
20 have, is capturing more information than this
21 sort of dumb meter. But the meter is
22 objective. And that's the good part of the
Neal R. Gross and Co., Inc. 202-234-4433 Page 137 1 meter.
2 But, I mean, you can hear with
3 your ears. You can hear frequency content.
4 You can hear directionality. The meter isn't
5 really taking in all that into account. It's
6 just taking, you know, the pressure level at
7 that microphone and letting us know what that
8 level is.
9 MEMBER JONES: Right. If you're
10 getting a peak or a maximum that's measured by
11 that device --
12 MR. HENNING: Right.
13 MEMBER JONES: -- you are also
14 measuring the average with that same device --
15 MR. HENNING: Right.
16 MEMBER JONES: -- which is
17 objective, right?
18 MR. HENNING: Right.
19 MEMBER JONES: You're applying
20 your general sense as, that is, you as a human
21 hearing it, to apply meaning to what those
22 measurements are, whether it's the average or
Neal R. Gross and Co., Inc. 202-234-4433 Page 138 1 the peak.
2 I'm trying to, it sounded like you
3 were saying there was a difference, that you
4 couldn't discern what your peaks were. But
5 you could what your averages were based on
6 your general sense. And it seems to me that
7 the general sense would apply to both. And if
8 not, why not?
9 MR. HENNING: Well, I mean, it's
10 just, it's harder, you know, to determine the
11 maximum, because you've got all these other
12 things going on. But when you've taken the
13 average over a time period, then you have two
14 numbers, okay.
15 And you can say, okay, this number
16 represents the background, this represents the
17 source. So, you know, you can compare them in
18 a more objective way, as opposed to looking
19 back at the interval and not knowing exactly
20 where this maximum occurred.
21 With the average you don't care.
22 You're just doing the whole interval. But
Neal R. Gross and Co., Inc. 202-234-4433 Page 139 1 with a maximum, at the end of the measurement
2 you have a table of values. But you don't
3 know when that maximum occurred.
4 So you can't say, oh, I heard it
5 coming from Ozio at that time, and now this is
6 the level. You can't do that. Because you
7 don't know in that table at the end what time
8 that measurement occurred.
9 So you may hear, say, after one
10 minute of measuring you may hear a peak from
11 Ozio. And you could write that down on a
12 paper. And then maybe another minute you'd
13 hear, you know, a big truck go by. And that
14 would be a peak. And maybe there would be a
15 higher peak. And you could write that down.
16 But, you know, when you get back,
17 when you're just doing the measurement, and at
18 the end you see these peaks, well, I mean, a
19 peak, you know, based on the different
20 frequencies. You got different frequency
21 peaks, as well as A weighted peaks.
22 But, you know, unless you
Neal R. Gross and Co., Inc. 202-234-4433 Page 140 1 correlate the maximum with a time of something
2 happening, it's hard to correlate it with the
3 source. Because the sources are varying. If
4 the source was steady then that would be an
5 easier thing to do.
6 But with the source varying over,
7 and you're doing an average over four minutes,
8 it's hard to know where. Unless you're trying
9 to look at the meter and figure all this out
10 ahead of time, it's hard to know where that
11 maximum occurred, and what created it.
12 MEMBER JONES: Understood. So you
13 can't actually identify the source, but you
14 can identify that a peak occurred? Right?
15 You can identify that this was 102 decibels,
16 or it was 60 or 70 decibels that I heard. I
17 just can't tell you I know it came from Ozio
18 or from a loud truck passing in the street at
19 that point in time?
20 MR. HENNING: Yes. For the
21 measurement period. So what we have --
22 MEMBER JONES: For the measurement
Neal R. Gross and Co., Inc. 202-234-4433 Page 141 1 period right.
2 MR. HENNING: Right, yes.
3 MEMBER JONES: So the time T-0 or
4 the time T-X --
5 MR. HENNING: Right. We have --
6 MEMBER JONES: -- whatever that is
7 --
8 MR. HENNING: We have a maximum.
9 MEMBER JONES: When you have a
10 maximum, or you have -- Yes. You have values
11 or peaks that are above the average. And one
12 of those would be a maximum.
13 MR. HENNING: We have the A-
14 weighted and we have the octave band levels.
15 MEMBER JONES: Right.
16 MR. HENNING: Like in this table
17 with the music sound levels.
18 MEMBER JONES: Correct.
19 MR. HENNING: Okay. And so at the
20 end of that four minute period inside the
21 units, we have a maximum.
22 MEMBER JONES: Okay.
Neal R. Gross and Co., Inc. 202-234-4433 Page 142 1 MR. HENNING: We have a maximum
2 dBa, just like we have an average dBa.
3 MEMBER JONES: Right.
4 MR. HENNING: But we just don't
5 know what created that.
6 MEMBER JONES: Understood. So, in
7 these measurements that I'm looking at from
8 this report in Table 1, is it conceivable or
9 possible that for the Unit 20 outdoor terrace
10 roof open scenario, that there were peaks that
11 were higher than the 64 dBa?
12 MR. HENNING: Yes.
13 MEMBER JONES: Okay. Do you
14 remember how many intervals or how many trials
15 you did to get to the 64? Was it just one
16 trial? Or did you do several trials?
17 MR. HENNING: Trials meaning
18 average level measurements?
19 MEMBER JONES: How many, so you
20 had time intervals from time T-0 to time T-X.
21 MR. HENNING: Right.
22 MEMBER JONES: You did that once.
Neal R. Gross and Co., Inc. 202-234-4433 Page 143 1 That's one interval. Did you do multiples of
2 those, or did you do one?
3 MR. HENNING: I don't know. I
4 would have to look.
5 MEMBER JONES: Okay. Fair enough.
6 And is it also possible that ambient noise
7 varies over time throughout the course of a
8 day, depending on what the activities are
9 going on throughout the course of a day?
10 So, for example, if there's rush
11 hour traffic in the middle of the day you have
12 ambient noise that may be higher than it is at
13 2 or 3 o'clock at night?
14 MR. HENNING: Yes.
15 MEMBER JONES: Okay. In the
16 instances where you're measuring ambient noise
17 at a certain time of day, does that have any,
18 does that factor into what the impact of that
19 delta would be, assuming a different time of
20 day?
21 So, for example, if I established
22 a baseline at the loudest ambient point of
Neal R. Gross and Co., Inc. 202-234-4433 Page 144 1 time in a day, would that potentially
2 contribute to there being a larger delta if
3 that source sound is set, based on that
4 loudest ambient time? And then I get later in
5 the day where the ambient noise is less.
6 Is it potentially a chance that my
7 delta could be greater than what it was that
8 I read at the loudest point of my ambient
9 background noise?
10 MR. HENNING: Yes. I mean, if the
11 background level decreases then you could have
12 a higher difference between --
13 MEMBER JONES: Delta, right.
14 Okay.
15 MR. HENNING: -- the background
16 and the source level, right.
17 MEMBER JONES: Okay. So if I set
18 it based on an ambient noise at time x, but I
19 have a lower ambient background noise at some
20 later time in the day, like 2 or 3 o'clock in
21 the morning, then it's conceivable that my
22 delta could have been greater than what I
Neal R. Gross and Co., Inc. 202-234-4433 Page 145 1 thought it was going to be when I set it
2 during the original test set that I performed?
3 So, in other words, I have in this table, I
4 have background ambient noise set at 62.
5 MR. HENNING: Right.
6 MEMBER JONES: And the time period
7 of the test went from roughly 8:00 p.m. to
8 12:00 a.m. Yes?
9 MR. HENNING: The measurements
10 that we took then?
11 MEMBER JONES: Yes. It looks like
12 from the report it says 8:00 p.m. to 12:30
13 a.m.
14 MR. HENNING: To 12:30 a.m.
15 MEMBER JONES: Okay. And that
16 12:30 a.m. is pretty late. But conceivably is
17 that, is it conceivable or possible that the
18 ambient noise could have decreased even
19 further from the 12:30 a.m. period to 2 or 3
20 o'clock?
21 MR. HENNING: Sure.
22 MEMBER JONES: Okay.
Neal R. Gross and Co., Inc. 202-234-4433 Page 146 1 MR. HENNING: It's just --
2 MEMBER JONES: And if that did
3 occur, then this background ambient number
4 that is measured at 62 would have actually,
5 could have actually been lower than that 62,
6 could have been 61, 60. And if that occurred,
7 then the delta could have actually been in the
8 range of four or more, assuming that my
9 background ambient went down.
10 MR. HENNING: Well, but you're not
11 taking into account that the measurements that
12 are recorded are a combination of background
13 and music. So if your background goes down,
14 the combined levels go down also.
15 MEMBER JONES: Correct. So if my
16 background goes down, but my music source does
17 not, it's not going to be a one for one drop.
18 So if my ambient goes down from 62 to 61, but
19 my source stays up, that number that I'm
20 measuring, which is the combined, isn't going
21 to be a one for one delta, because my ambient
22 noise went down.
Neal R. Gross and Co., Inc. 202-234-4433 Page 147 1 That 64 is not going to go from 64
2 to 63 because my ambient went down from 62 to
3 61, because my source, my noise source hasn't
4 changed. Is that a fair statement?
5 MR. HENNING: Well, it's more
6 complicated than a one to one. Because --
7 MEMBER JONES: Understood.
8 MR. HENNING: But in general, if
9 your background goes level, if the source were
10 set and we got these measurements at 12:00
11 a.m. let's say, and then at 3 o'clock you came
12 back and you measure it, and the background
13 was lower, they still had the music set the
14 same, the combined level would be lower too.
15 But exactly what it would be I'd have to
16 calculate it.
17 MEMBER JONES: You'd have to
18 calculate that, right. Okay. Fair enough.
19 Also, I noticed that in Table 2, which you
20 described for Board Member Alberti, you have
21 frequency ranges that are noted here.
22 And in those that the frequency
Neal R. Gross and Co., Inc. 202-234-4433 Page 148 1 30, basically the bass level frequencies
2 obviously appear to be a little bit higher in
3 my decibels, than my other frequencies are
4 concerned.
5 The number from Table 1 for the
6 open, for Unit 20 outdoor terrace, under roof
7 open, is that a combined, if you will, for all
8 frequency ranges, the 64 that came in there?
9 MR. HENNING: That's the A-
10 weighted level.
11 MEMBER JONES: Understood. So is
12 that everything?
13 MR. HENNING: So, yes. But the A-
14 weighting rolls off the low frequencies the
15 way our ears do. And that's why it's in the
16 noise ordinance, is that we don't hear all
17 frequencies of sound equally. We don't hear
18 the low frequencies as well as, you know, the
19 mid frequency sounds in our hearing range.
20 So the A-weighting is a filter
21 network that rolls off the lows, the way our
22 ears do. So, these octave band levels that
Neal R. Gross and Co., Inc. 202-234-4433 Page 149 1 are shown in Table 2 are not A-weighted.
2 There's no A-weighting. Those are just the
3 octave band levels.
4 MEMBER JONES: Those are raw
5 readings, raw values?
6 MR. HENNING: Yes. These are the
7 readings without them being adjusted by the A-
8 weighting. What we're showing is the A-
9 weighted level, and then the unweighted octave
10 band levels, which is a standard way of
11 recording this data. So, you know, what if,
12 in a sense, if you were to take these octave
13 band levels --
14 MEMBER JONES: Yes.
15 MR. HENNING: -- and take the A-
16 weighting, and subtract, you know, that
17 weighting from these levels, then the
18 resulting levels, octave band levels, would be
19 substantially lower at the low frequencies --
20 MEMBER JONES: Okay.
21 MR. HENNING: -- as shown here.
22 MEMBER JONES: So, let me ask this
Neal R. Gross and Co., Inc. 202-234-4433 Page 150 1 question. If I performed the measurement that
2 you have in Table 2, would it be possible to
3 perform that same measurement from the same
4 location where you performed the A-weighted
5 measurement in Table 1, inside of Unit 20?
6 MR. HENNING: I'm sorry. Would
7 you say that again?
8 MEMBER JONES: The measurements
9 that you took, the mechanism that you used to
10 collect the data to compile and fill in Table
11 2, would I be able to perform that same
12 exercise inside of Unit 20, where you
13 performed the A-weighted measurements?
14 MR. HENNING: Yes. In fact, I
15 have that data.
16 MEMBER JONES: You have that data
17 in this report?
18 MR. HENNING: No.
19 MEMBER JONES: Oh, okay. That
20 data that you have, that's not in this report,
21 does it show that the lower frequencies were
22 heard at a higher level than the higher
Neal R. Gross and Co., Inc. 202-234-4433 Page 151 1 frequencies?
2 MR. HENNING: Well, heard were the
3 lower --
4 MEMBER JONES: Well were the
5 decibels -- Sorry. The decibel levels
6 associated with the lower frequencies, were
7 they discerned to be higher or lower than the
8 lower frequencies?
9 MR. HENNING: Were they higher or
10 lower? I'd have to look at the data.
11 MEMBER JONES: You'd have to look.
12 Okay.
13 MR. HENNING: But most of the time
14 the background noise level has higher low
15 frequency sounds, you know, like --
16 MEMBER JONES: Yes.
17 MR. HENNING: -- you know, because
18 you've got traffic noise, which is a lot of
19 low frequencies. And that's getting in
20 through other kinds of sounds. Mechanical
21 equipment have a lot of low frequencies. So,
22 you know, background level tends to be higher
Neal R. Gross and Co., Inc. 202-234-4433 Page 152 1 in the low frequency octave bands than in the
2 higher bands.
3 MEMBER JONES: Okay. So, I guess
4 at a high level, what factors would increase
5 the delta in your, between your ambient
6 background noise and your source level?
7 So, assuming that you have control
8 over the source, what things could be done to
9 create a larger delta, besides the obvious of
10 turning up the volume, between your ambient
11 noise and your source? Is there anything?
12 MR. HENNING: Well, I mean, you
13 can create, you can increase the ambient. In
14 fact, that's done in open office areas for
15 privacy between work stations, you know, where
16 you have cubicles next to each other.
17 One of the things that's a part of
18 a good open office design is to have masking
19 noise. And there's actually speakers up in
20 the plenum to generate kind of a broad band,
21 kind of a shhh type sound. And that doesn't
22 reduce any kind of transmission between
Neal R. Gross and Co., Inc. 202-234-4433 Page 153 1 cubicles. But it covers it up, makes it less
2 disturbing.
3 MEMBER JONES: Does it raise the
4 noise floor, essentially?
5 MR. HENNING: Yes.
6 MEMBER JONES: Okay. So in the
7 process of doing that, that's one thing that
8 could be done to help bring down what you see
9 at the delta, between the source and the noise
10 floor? I'm looking at it more from the other
11 direction.
12 So is there anything, for example,
13 is the type of music being played, could that
14 have a impact on the perception, or how it's
15 received or measured, whatever is appropriate,
16 from the time that you have your background
17 ambient as established, and what you're
18 hearing, or what you're reading?
19 If I change the nature of the type
20 of music that is being played, does that have
21 an impact? Could that be one mechanism by
22 which I can increase the delta between my
Neal R. Gross and Co., Inc. 202-234-4433 Page 154 1 ambient and my source, or what's perceived?
2 I'm sorry.
3 MR. HENNING: Sure. I mean, if
4 you change the frequency character of the
5 source --
6 MEMBER JONES: Right.
7 MR. HENNING: -- that could have a
8 bearing.
9 MEMBER JONES: Okay. And which,
10 change the frequency character. If I wanted
11 to increase the delta would I change, add more
12 bass, or add more high in?
13 MR. HENNING: Well you'd have to
14 turn, it would have to come down lower.
15 MEMBER JONES: Lower, right?
16 Okay, cool. So if I had more of a bass feel,
17 then that would create more of a delta
18 potentially?
19 MR. HENNING: Well, the A-
20 weighting takes into account all those
21 frequencies. So, I mean, if your background
22 level is set, then the only way to get a low,
Neal R. Gross and Co., Inc. 202-234-4433 Page 155 1 you're after a lower difference between --
2 MEMBER JONES: Well, just a
3 difference, whether it's higher or lower. I'm
4 trying to figure out which frequency
5 contributes more to it being delta.
6 MR. HENNING: That you have to
7 look at in terms of how the A-weighted levels
8 determine. In other words, I could do an
9 analysis of the noise.
10 MEMBER JONES: Okay.
11 MR. HENNING: And I could say,
12 okay, the low frequencies are determining this
13 A-weighted level.
14 MEMBER JONES: Got it.
15 MR. HENNING: Or they would be the
16 mid frequency level. I'd have to look and
17 analyze the data for that.
18 MEMBER JONES: Okay. Fair enough.
19 How do we hear as humans? Do we hear as A-
20 weighting measures?
21 MR. HENNING: Yes, similarly.
22 MEMBER JONES: Okay. Got it.
Neal R. Gross and Co., Inc. 202-234-4433 Page 156 1 MR. HENNING: Yes.
2 MEMBER JONES: Fair enough. But,
3 I guess, back to my original question. One of
4 the things that could contribute to an
5 increased delta would be changing of the type
6 of music being played. Even if it's at the
7 same source level.
8 If it was fixed at 92 or 88,
9 wherever it was. If you change the nature of
10 that, then potentially you could increase the
11 delta between your ambient noise and what is
12 measured at the A-weighting level?
13 MR. HENNING: Correct.
14 MEMBER JONES: Okay. Fair enough.
15 Anything else that you can think of from that
16 standpoint? Given that vein of question that
17 I'm asking? I'm not nearly as smart as you
18 are. So I'm just trying to understand if
19 there are other factors that can be
20 contributed to, that the owner or the
21 controller of the source could do to either
22 increase or decrease.
Neal R. Gross and Co., Inc. 202-234-4433 Page 157 1 So you mentioned increase the
2 noise level, that's one. Other thing, to
3 change the nature of the music being played,
4 that's two. Anything else?
5 MR. HENNING: Well, again, the
6 delta, when you're thinking of the background
7 noise level, if you increase the background
8 noise level, not in terms of the
9 establishment, but at the receiving location.
10 MEMBER JONES: Right. Okay. Fair
11 enough. Okay. All right. The test that you
12 did on this past Friday, do you have any idea
13 -- And you may have answered this. So I
14 apologize. But do you have what the
15 measurement --
16 Well, let me back up. When you
17 went in on Friday, did you take a measurement
18 inside or on the middle of the floor? The
19 same reference points that you used in Table
20 2? Did you take a decibel reading level?
21 So, on Table 2 there's a
22 annotation here for, in the table, noted as
Neal R. Gross and Co., Inc. 202-234-4433 Page 158 1 measured location, middle of floor. Was that
2 the same place where you took the measurements
3 you took on Friday?
4 MR. HENNING: Yes. They were
5 pretty much the same way.
6 MEMBER JONES: Pretty much the
7 same way, okay. And the measurement that you
8 took on Friday, I think you noted it came in
9 at roughly 88 dBa?
10 MR. HENNING: Right.
11 MEMBER JONES: So the 88 dBa, when
12 you measured the 88 dBa, or when you measured
13 that value, in comparison to the measured
14 value in 2010, it looks like there were 4 dBa
15 delta, or difference between the 92 dBa value
16 and the 88 dBa value. Is that correct? Am I
17 reading that correctly?
18 MR. HENNING: Right.
19 MEMBER JONES: Okay. Was it your
20 understanding that the 92 at the time that you
21 did the report in 2010 was a, which goes back
22 to my original question of what the objective
Neal R. Gross and Co., Inc. 202-234-4433 Page 159 1 was. But, so I'm going to say, was that a
2 good value? But I guess good is relative,
3 based on what your objective was in putting
4 together a report.
5 What did you understand to be that
6 92 value? Was that something that you were
7 thinking, okay, yes, I expect the operator,
8 I'm giving the operator something to go by,
9 whereby they would not be in violation of D.C.
10 Code? Or was that value just, hey, this is
11 what we found. Here's a report. Do with it
12 as you see fit.
13 MR. HENNING: Well, I think it
14 was, you know, the lounge turned it at a level
15 that they thought was appropriate, in terms of
16 how they do their business, and so forth.
17 MEMBER JONES: Right.
18 MR. HENNING: And then it was a
19 matter of evaluating that at the Jefferson.
20 MEMBER JONES: Okay. So you
21 evaluated it. And did it, was the outcome of
22 your evaluation that 92 dBa was okay?
Neal R. Gross and Co., Inc. 202-234-4433 Page 160 1 MR. HENNING: At the Jefferson,
2 yes.
3 MEMBER JONES: Yes. At the
4 Jefferson. I apologize. Okay. And what I'm
5 not following is, if 92 was an acceptable
6 level in 2010, what could have changed between
7 2010 and now, whereby 92 has now dropped down
8 to 88?
9 And then 88 is actually a little
10 bit too high, based on some of the readings
11 that appear to be what I remember from you
12 said. But maybe I'm not hearing it correctly.
13 It seems like there was a change from the 2010
14 92 level, at least to the 2014 88 level, where
15 88 was now being measured as a little bit,
16 potentially outside of the acceptable range.
17 But am I hearing you incorrectly when I say
18 that?
19 MR. HENNING: Well, you have to
20 understand there's two different locations --
21 MEMBER JONES: Correct.
22 MR. HENNING: -- for these things.
Neal R. Gross and Co., Inc. 202-234-4433 Page 161 1 So the 92 was measured at the Jefferson. The
2 88 was, you know, some levels associated with
3 that were measured three or four feet away
4 from the Ozio building.
5 MEMBER JONES: I'm sorry. So
6 maybe I don't understand the point of
7 reference. So middle of the floor, I'm
8 thinking you're standing in the middle of the
9 floor with the music playing, and you're
10 measuring 92 dBa, right at that point in time.
11 MR. HENNING: Well, I'm doing, I'm
12 walking around the stage. So I'm not just
13 standing in one spot. I'm taking kind of a
14 room level.
15 MEMBER JONES: Got it. So you're
16 walking around in the middle of the floor.
17 MR. HENNING: And I did that for
18 both cases.
19 MEMBER JONES: Okay.
20 MR. HENNING: The 92 and the 88.
21 It's just that the measurements that I took
22 with the 88 were three or four feet away from
Neal R. Gross and Co., Inc. 202-234-4433 Page 162 1 the building. Whereas, the measurements I
2 took outside with 92 were at the Jefferson,
3 which is further away.
4 MEMBER JONES: Okay. So the
5 measurements that you took at 88 were three or
6 four feet away from the building?
7 MR. HENNING: Yes.
8 MEMBER JONES: Is it fair to say
9 that if you had taken those exact same
10 measurements in 2010 they would be roughly 4
11 dB higher than what you measured when you
12 measured them three or four feet away from the
13 building when it was at 88?
14 MR. HENNING: Yes.
15 MEMBER JONES: Okay. And when you
16 measured them at 88, it was when the roof was
17 open. I think you indicated the back was at
18 70 dBa, when you did it the Friday?
19 MR. HENNING: Yes. Yes.
20 MEMBER JONES: So back in 2010 at
21 that same location is it fair to assume that
22 it would have been roughly around 74 dBa
Neal R. Gross and Co., Inc. 202-234-4433 Page 163 1 measured at the same location, three to four
2 feet away from the building?
3 MR. HENNING: Yes.
4 MEMBER JONES: Okay. So nothing
5 has really changed. It's just the points of
6 reference of where you took your measurements?
7 MR. HENNING: Correct.
8 MEMBER JONES: Okay. All right.
9 I think that's all I have. Thank you very
10 much. Thank you, Mr. Chair.
11 MEMBER ALBERTI: Thank you, Mr.
12 Jones. Mr. Silverstein?
13 MEMBER SILVERSTEIN: Thank you.
14 Thank you, Mr. Jones.
15 MEMBER JONES: Yes, sir.
16 MEMBER SILVERSTEIN: I'm going to
17 start with a double negative here. Help me
18 out. If it's less than 4 dBa difference
19 between ambient noise and the sound, that
20 doesn't mean that the quality of life is not
21 affected, does it? I mean, if you have a loud
22 bass line, and it goes up 3 dBa, you are
Neal R. Gross and Co., Inc. 202-234-4433 Page 164 1 lowering the quality of life?
2 MR. HENNING: Well, the higher the
3 level is relative to the background voice
4 level, the more you're going to notice it.
5 The louder it's going to be perceived. And
6 then, if noticing a louder level is a lowering
7 of quality of life, then yes.
8 MEMBER SILVERSTEIN: So in other
9 words, you can have the same amount of din
10 from a second source, and it might not be any
11 louder, but it will affect in a cumulative way
12 the quality of life, if there is in fact such
13 noise? I'm trying to get a handle on this 4
14 dBa.
15 MR. HENNING: Well again, the four
16 is there in the measurement procedure to say
17 that if you're less than that you can't really
18 accurately determine the sound level of the
19 source in a background noise level. And
20 that's really --
21 MEMBER SILVERSTEIN: You can't
22 pinpoint --
Neal R. Gross and Co., Inc. 202-234-4433 Page 165 1 MR. HENNING: -- what that's for.
2 MEMBER SILVERSTEIN: You can't
3 pinpoint where it came?
4 MR. HENNING: You can't measure
5 the level accurately. In other words, you've
6 got two sources. You've got the background
7 level, and you've got the source level. And
8 you're trying to determine what the source
9 level is, okay?
10 If the source level is high enough
11 above the background, then you can measure the
12 combined level. And there's a way of
13 subtracting out the background, if you measure
14 that separately.
15 MEMBER SILVERSTEIN: Okay.
16 MR. HENNING: Then you can get to
17 a reasonably accurate measurement of the
18 source level. But when the source and the
19 background level get too close together, you
20 can't extract that background out in a
21 reasonably accurate way.
22 MEMBER SILVERSTEIN: Okay. Got
Neal R. Gross and Co., Inc. 202-234-4433 Page 166 1 that. Now, the initial sound test involving
2 Jefferson Row were 92 dBa at the source. What
3 did you hear inside those units in Jefferson
4 Row?
5 MR. HENNING: Well, I think --
6 MEMBER SILVERSTEIN: Just, you
7 know, I'm not asking for a level.
8 MR. HENNING: Yes, I mean --
9 MEMBER SILVERSTEIN: I'm just,
10 what did your ears pick up?
11 MR. HENNING: Inside it was a
12 combination of things. People in the alley
13 talking, especially on the unit in the back.
14 You know, somebody comes out and puts stuff in
15 the trash can, you hear that. You hear
16 mechanical equipment.
17 And when the music was playing I
18 heard a little bit of music. But I couldn't
19 tell inside where that music was coming from.
20 But, you know, outside on the terrace, where
21 I had a, more of a line of sight to Ozio, then
22 I could sort of see it, you know, perceive it
Neal R. Gross and Co., Inc. 202-234-4433 Page 167 1 coming from Ozio.
2 MEMBER SILVERSTEIN: Do you know
3 how far away Jefferson Row is from Ozio?
4 MR. HENNING: I don't know.
5 MEMBER SILVERSTEIN: Paint a
6 picture for us.
7 MR. HENNING: I don't know
8 exactly. But, I mean, it was postulated that
9 it was about 160 feet. And I said that was,
10 you know, a reasonable level. I mean, a
11 reasonable distance from the residence.
12 MEMBER SILVERSTEIN: It's a
13 straight shot acoustically? There's nothing,
14 no buildings or anything in between?
15 MR. HENNING: Well, there's --
16 From the terrace, again, I could see direct
17 line of sight to Ozio. You know, as you get
18 down lower in the building, then, you know,
19 other buildings, depending on where your
20 apartment unit is could be blocked. And you
21 wouldn't have line of sight to Ozio's rooftop
22 lounge.
Neal R. Gross and Co., Inc. 202-234-4433 Page 168 1 MEMBER SILVERSTEIN: But it's
2 maybe 100, 150 feet away?
3 MR. HENNING: Well, I'm thinking
4 it's probably 150, somewhere in there.
5 MEMBER SILVERSTEIN: Okay. Do you
6 know how far away the Palladium is?
7 MR. HENNING: No.
8 MEMBER SILVERSTEIN: Do you know
9 where the Palladium is?
10 MR. HENNING: No.
11 MEMBER SILVERSTEIN: Okay. So
12 then you could not tell us whether it's likely
13 that they are hearing the music from Ozio?
14 MR. HENNING: I mean, not really.
15 I mean, if I knew the distance, which I've
16 hear about what it is. But, I mean, if I know
17 the distance and there's not intervening
18 buildings, and all that, which is a big if,
19 then you could do a, you know, a calculation
20 of some sort to try to estimate what it would
21 be.
22 But if you've got, you know,
Neal R. Gross and Co., Inc. 202-234-4433 Page 169 1 buildings, you know, blocking line of sight,
2 and then you've got reflections among the
3 buildings, it would be pretty hard to know
4 what that would be.
5 MEMBER SILVERSTEIN: If it was
6 more than 500 feet away, and if there was a
7 building blocking it, if, based on your
8 expertise, could you make an intelligent
9 estimate?
10 MR. HENNING: I'd have to know
11 more details.
12 MEMBER SILVERSTEIN: Good. Let's
13 not go there. No further questions.
14 MEMBER ALBERTI: Okay. Mr.
15 Henning, thank you for your tutorial on sound
16 measurements. I'm going to hand this back to
17 Mr. Fonseca for redirect.
18 MR. FONSECA: I'm going to beg
19 mercy of the clock keeper here. I'm at a
20 loss. It's already 4:10 p.m. I'm fearful of
21 putting on both my witnesses. We may just
22 only go with one.
Neal R. Gross and Co., Inc. 202-234-4433 Page 170 1 I would ask one last question that
2 goes to both the different readings. Is it
3 not fair to say that in 2010 it gave you a
4 level that was at the higher end of the sound
5 system, to see what it was going to be like?
6 Because we were testing.
7 MR. HENNING: Right.
8 MR. FONSECA: And frankly, I
9 discussed this with you. So when we talked
10 about coming to test for compliance with the
11 Noise Control Act, with reading within the
12 meter, or approximately that range, did we not
13 say we're going to have a level that the owner
14 said is at our high end? Is that what they
15 told you? This is about, you know, we're
16 already at louder than we normally have it.
17 MR. HENNING: It was adjusted to,
18 my understanding was, kind of at the upper end
19 of what they reasonably play in the lounge.
20 MR. FONSECA: Okay. And that's
21 how the 88 was done?
22 MR. HENNING: Right.
Neal R. Gross and Co., Inc. 202-234-4433 Page 171 1 MR. FONSECA: And we found that
2 when the roof's open 88 probably would be a
3 noise code violation. But when the roof is
4 closed it would not. Based on just your set
5 of readings at that particular moment in time,
6 with the ambient sound.
7 MR. HENNING: Again, it would be
8 over the 60. It's just a matter of whether or
9 not you say by the Noise Code that, you know,
10 you're measuring at that, you know, three to
11 four feet. Again, the Code says, not less
12 than one meter.
13 MR. FONSECA: Right. So what I'm
14 trying to get at is, did you ever feel that
15 the noise level, when it was at 92 for the
16 2010 test, or at 88, was manipulated to be
17 extraordinarily at a low level for a dance
18 club?
19 MR. HENNING: Certainly not
20 extraordinarily low. But other than that, I
21 can't say.
22 MR. FONSECA: Was it loud to you?
Neal R. Gross and Co., Inc. 202-234-4433 Page 172 1 MR. HENNING: Again, I mean,
2 somebody that, you know, at a level of
3 somebody basically shouting three feet away
4 from me, I mean, I can say that's, you know,
5 fairly loud.
6 MR. FONSECA: Okay. I have no
7 further questions.
8 MEMBER ALBERTI: Ms. Peck?
9 MS. PECK: One last question. Do
10 you have other night clubs as clients that you
11 go in and measure their sound for them as
12 well?
13 MR. HENNING: Not on a regular
14 basis, no.
15 MS. PECK: So you don't work with
16 other night clubs?
17 MR. HENNING: Well, I have, yes.
18 But I'm not presently working with any at this
19 moment.
20 MS. PECK: Have you had an
21 opportunity to measure the noise level that
22 are common in this city for night clubs? Have
Neal R. Gross and Co., Inc. 202-234-4433 Page 173 1 you had that opportunity to do that?
2 MR. HENNING: To some extent.
3 MS. PECK: So what is the average
4 range that nightclubs in the city tend to
5 operate for this kind of club, dancing, this
6 sort of thing?
7 MR. HENNING: I mean, I would say
8 the levels I measured, you know, in that, you
9 know, around 90 is a fairly loud level that is
10 kind of typical for what I've, my experience.
11 MS. PECK: Have you heard louder?
12 MR. HENNING: I don't know. When
13 you --
14 MS. PECK: I should say, have you
15 measured louder?
16 MR. HENNING: Nightclubs in the
17 District, I don't know. I don't know if I
18 have. When you're talking about a live band
19 that's when, you know, you get another sort of
20 increment in loudness.
21 It's amazing. But, you know,
22 nightclub music, you know, around 90 from my
Neal R. Gross and Co., Inc. 202-234-4433 Page 174 1 experience is right there, you know, it's kind
2 of a typical sort of loud nightclub sound.
3 (Off microphone comments)
4 MS. PECK: No further questions.
5 MEMBER ALBERTI: Thank you, Ms.
6 Peck. Okay. Mr. Henning, I think you may
7 step down.
8 MR. HENNING: Thank you.
9 MR. FONSECA: I think I'm going to
10 probably just, I think we'll reduce our load
11 by one, and just put the general manager on if
12 we could.
13 MEMBER ALBERTI: Okay. That's
14 your decision. We're not going to argue with
15 that. This is, Mr. Jones?
16 MEMBER JONES: Just a point of
17 information. Licensee has 47 minutes
18 remaining, protestants have 73 minutes
19 remaining.
20 MR. FONSECA: Is there a 4:30
21 hearing after this?
22 MEMBER ALBERTI: Yes. And we, I
Neal R. Gross and Co., Inc. 202-234-4433 Page 175 1 mean, this is typical. This is to be
2 expected, okay.
3 MR. FONSECA: Well, I'll wait
4 until we finish with this testimony and make
5 a final decision --
6 MEMBER ALBERTI: Okay.
7 MR. FONSECA: -- as to whether
8 I'll have Mr. Christacos to speak.
9 MEMBER ALBERTI: Okay. Sir, would
10 you raise your right hand? Do you solemnly
11 affirm that the testimony you're about to give
12 will be the truth, the whole truth, and
13 nothing but the truth?
14 MR. ABDOULAYE: Yes, I do.
15 MEMBER ALBERTI: Thank you.
16 Please be seated.
17 MR. FONSECA: Would you please
18 state and spell your first and last name?
19 MR. ABDOULAYE: Sall Abdoulaye, S-
20 A, double L, A-B-D-O-U-L-A-Y-E.
21 MR. FONSECA: That's Abdoulaye?
22 MR. ABDOULAYE: Abdoulaye, yes.
Neal R. Gross and Co., Inc. 202-234-4433 Page 176 1 MR. FONSECA: And Sall, I'm going
2 to call you Sall, okay? What's your position
3 with Ozio?
4 MR. ABDOULAYE: General Manager.
5 MR. FONSECA: How long have you
6 had that position?
7 MR. ABDOULAYE: I've been working
8 for Ozio for like 15 years.
9 MR. FONSECA: So were you working
10 with them before they moved to 1813?
11 MR. ABDOULAYE: Yes.
12 MR. FONSECA: 1813 M Street?
13 MR. ABDOULAYE: Yes.
14 MR. FONSECA: Did you have
15 occasion to be at the club when the sound
16 measurements were taken in 2010?
17 MR. ABDOULAYE: Yes.
18 MR. FONSECA: And did you
19 participate with setting up the levels?
20 MR. ABDOULAYE: Yes.
21 MR. FONSECA: You met Mr. Henning?
22 MR. ABDOULAYE: Yes.
Neal R. Gross and Co., Inc. 202-234-4433 Page 177 1 MR. FONSECA: And how were the
2 levels established for doing the test?
3 MR. ABDOULAYE: They put the music
4 louder, we can see how, can hear it in the
5 neighbors, like Jefferson Place. And we start
6 to put it lower and lower, to make sure can go
7 with the measurement he was doing.
8 And it was, we were not measuring
9 by the alley. We were measuring by the
10 building inside Ms. Valentine's and Anna
11 apartment.
12 MR. FONSECA: Ms. Valentine's and
13 Ms. Ann Kappel?
14 MR. ABDOULAYE: Yes.
15 MR. FONSECA: And at Ms. Kappel --
16 Well, were you inside there? Or was it just
17 Mr. Henning?
18 MR. ABDOULAYE: No, not me.
19 MR. FONSECA: You stayed at --
20 MR. ABDOULAYE: Yes.
21 MR. FONSECA: You stayed at the
22 business? Okay. After, you were familiar
Neal R. Gross and Co., Inc. 202-234-4433 Page 178 1 with the voluntary agreements that were signed
2 by the parties?
3 MR. ABDOULAYE: Yes.
4 MR. FONSECA: And you're familiar
5 with the ability to respond to complaints?
6 MR. ABDOULAYE: Yes.
7 MR. FONSECA: Have you taken
8 complaints going back to -- Well, first of
9 all, about when did you finally open the
10 rooftop to the public? Because it was well
11 after the first agreement, correct?
12 MR. ABDOULAYE: Yes.
13 MR. FONSECA: Do you remember when
14 it was?
15 MR. ABDOULAYE: May 2nd, May 3rd.
16 MR. FONSECA: Of which year?
17 MR. ABDOULAYE: 2011.
18 MR. FONSECA: Okay. So after that
19 there was a test period that extended on to
20 August, correct?
21 MR. ABDOULAYE: Yes.
22 MR. FONSECA: And after the second
Neal R. Gross and Co., Inc. 202-234-4433 Page 179 1 agreement, which the Board, which is Board's
2 Exhibit 4, which is in July of 2011, that was
3 the final agreement, did you have any
4 continuing complaints in '11? And do you
5 remember from whom?
6 MR. ABDOULAYE: Yes. We have
7 complaint 2011, September, from Ms. Valentine.
8 And she called me, she called Ozio, and she
9 called Steven, and she called my cell phone.
10 And I decide to go to her apartment. Because
11 that time we don't have no music on.
12 And I stay with her on her
13 terrace, on the patio. And her husband admit
14 the music coming from another venue, not from
15 Ozio. That's the last time I hear from Ms.
16 Valentine.
17 And last, two weeks ago, it was
18 February 20th, it was loud music. We had a
19 band. And Ms. Anna Kappel she called, and she
20 complain. And we put the music down.
21 MR. FONSECA: In that instance, is
22 that the normal mechanism? You got the
Neal R. Gross and Co., Inc. 202-234-4433 Page 180 1 complaint --
2 MR. ABDOULAYE: We put it down.
3 MR. FONSECA: -- you investigate
4 it --
5 MR. ABDOULAYE: We put it, yes.
6 MR. FONSECA: -- and you
7 confirmed, you do adjustments?
8 MR. ABDOULAYE: Yes.
9 MR. FONSECA: Do you recall
10 complaints in 2012?
11 MR. FONSECA: No.
12 MR. FONSECA: Okay. And what
13 about in 2013?
14 MR. ABDOULAYE: Not until February
15 -- not 2013, sorry.
16 MR. FONSECA: Okay. So when did
17 you first begin in 2013, to understand that
18 there concerns about Ozio's music?
19 MR. ABDOULAYE: I would say we
20 didn't, for that renewal application we have
21 a process hearing about some neighbors who
22 have complained about the music. And I was
Neal R. Gross and Co., Inc. 202-234-4433 Page 181 1 looking which neighbor we have the complaint
2 about the music.
3 All I know it was the Jeffersons.
4 And I was going out in the back to check the
5 music. And the address it was 1835 18th
6 Street. It was like two block from us.
7 And from that time I been going
8 behind the building every 20, 30 minutes to
9 make sure the music is not come from us. And
10 having my phone to make sure, by this is not
11 accurate app to make sure the dB is kind of
12 low.
13 MR. FONSECA: You have an
14 application --
15 MR. ABDOULAYE: Yes.
16 MR. FONSECA: -- on your phone?
17 MR. ABDOULAYE: Yes.
18 MR. FONSECA: Okay.
19 MR. ABDOULAYE: And most time is
20 not come from us. Only one time, the February
21 20th it was loud from us. And that's, right
22 after that we never, we don't play loud music.
Neal R. Gross and Co., Inc. 202-234-4433 Page 182 1 We don't use the mic.
2 (Off the record comments)
3 MR. FONSECA: When that evening,
4 that was a band. Was the band using their own
5 sound equipment?
6 MR. ABDOULAYE: Yes.
7 MR. FONSECA: Did you learn a
8 lesson from that?
9 MR. ABDOULAYE: Yes. It was our
10 mistake. It was only one time, yes.
11 MR. FONSECA: Tell me, are there
12 times when you have your roof open, when you
13 can hear music when you're, you know, we're
14 talking late at night when you're relatively,
15 you know, at capacity, when you hear music
16 from other establishments filtering into your
17 place?
18 MR. ABDOULAYE: Yes.
19 MR. FONSECA: Is that often?
20 MR. ABDOULAYE: Every Friday,
21 Saturdays.
22 MR. FONSECA: Okay. And can you
Neal R. Gross and Co., Inc. 202-234-4433 Page 183 1 attribute the source where that's coming from?
2 MR. ABDOULAYE: Eighteenth Street
3 Lounge. They have louder music than us. And
4 you can't hear music if you go to the Ozio
5 alley, or by Ozio back door.
6 All you hear is Eighteenth Street
7 Lounge music. And if Eighteenth Street not
8 open you hear Ozio in the alley, most people
9 talk, and not music.
10 MR. FONSECA: Have you ever found
11 it necessary to close your roof, so that you
12 could escape their sounds?
13 MR. ABDOULAYE: Like sometime when
14 we close, like 2:00 a.m., 2:30 a.m. in the
15 morning, we close 30 minutes earlier, if like
16 the music isn't Ozio. Because we hear the
17 music so loud. And you can't hear the person
18 we're talking with inside the Ozio.
19 MR. FONSECA: So, is your phone
20 number available? And has it been available
21 to the --
22 MR. ABDOULAYE: Yes.
Neal R. Gross and Co., Inc. 202-234-4433 Page 184 1 MR. FONSECA: -- residents at
2 Jefferson Place?
3 MR. ABDOULAYE: Yes. Ms.
4 Valentine, she call me on my cell phone.
5 MR. FONSECA: And have -- Ms.
6 Valentine has called?
7 MR. ABDOULAYE: She guide me to
8 get to her apartment. She open the door for
9 me, and I went upstairs. And we talk about
10 the music. We talked about music for like a
11 minute. Most we talk about her cats, where
12 I'm from.
13 MR. FONSECA: Well, it's good to
14 be a good neighbor. Have they called Mr.
15 Christacos, even when he's not at the club?
16 MR. ABDOULAYE: Yes. They call
17 him, I think it was September that he was in
18 the beach. And he picked up the phone, he
19 called me. And I talked to her. And we try
20 to --
21 MR. FONSECA: When you say her,
22 was that Ms. Kappel? This was about the band?
Neal R. Gross and Co., Inc. 202-234-4433 Page 185 1 MR. ABDOULAYE: The February 20th?
2 Not then, but before.
3 MR. FONSECA: Oh, back in 2011?
4 MR. ABDOULAYE: Yes.
5 MR. FONSECA: Okay. I want you to
6 be a little more --
7 MR. ABDOULAYE: 2011.
8 MR. FONSECA: Okay.
9 MR. ABDOULAYE: Yes. From
10 February 20th when she called. Another
11 manager pick up the phone. And she ask her,
12 if she give her number if she will call her
13 right back to make sure if the music went
14 down. And she said, promise me if I give you
15 my number, you're not calling me tonight.
16 And I went back in the alley, and
17 I called her. I told her to put the music
18 down. Ask the band if they can lower the
19 sound down a little bit more. And from that
20 time she never called back after that.
21 MR. FONSECA: No further
22 questions.
Neal R. Gross and Co., Inc. 202-234-4433 Page 186 1 MEMBER ALBERTI: Thank you, Mr.
2 Fonseca. Ms. Peck?
3 MS. PECK: Do you maintain a
4 complaint log?
5 MR. ABDOULAYE: Yes.
6 MS. PECK: Did you produce it for
7 this hearing?
8 MR. ABDOULAYE: I think we have
9 it. Everything's in there.
10 MR. FONSECA: We haven't made
11 copies because they're on --
12 MEMBER ALBERTI: Well wait, wait,
13 wait. She just asked the question.
14 MR. FONSECA: It's yes.
15 MS. PECK: Thank you. And at some
16 point we would like to see the complaint log,
17 if we could have a copy of that. This is
18 something that's required by the settlement
19 agreement? Is that correct?
20 MR. ABDOULAYE: Yes, yes.
21 MS. PECK: So do you know how many
22 complaints you've had since the settlement
Neal R. Gross and Co., Inc. 202-234-4433 Page 187 1 agreement was completed, that you've logged?
2 MR. ABDOULAYE: From 2011 most
3 complaint it was in the beginning, from one
4 person, from Ms. Valentine. There was nobody
5 else. And 2012 was one complaint, 2013 was no
6 complaint, 2013 was no complaint until
7 February 20, 2014, we got a call from Anna
8 Kappel.
9 Before that we don't get
10 complaint. Nobody called my cell phone.
11 Nobody call Ozio. And I tell you, only the
12 one time in 2011 when she called. I ask her,
13 we're not playing music, and I ask if I can
14 come to her place. She say, yes, no problem.
15 And I went to her place. And her husband
16 admits the music come from somewhere else.
17 MS. PECK: We heard today that a
18 sound test was done with 92 decibels as --
19 MEMBER ALBERTI: Wait a second.
20 MS. PECK: -- the test level. How
21 loud do you typically play music in the
22 upstairs roof deck area?
Neal R. Gross and Co., Inc. 202-234-4433 Page 188 1 MR. ABDOULAYE: Loud music up
2 there. We don't play it that loud. And one
3 thing I can say --
4 MS. PECK: Do you know what
5 decibel level? Do you actually take those
6 numbers?
7 MR. ABDOULAYE: In my phone? In
8 my room by myself it's like 70. If it was the
9 music it seems to be like 80, 88, 89.
10 MS. PECK: Seventy in your home?
11 MR. ABDOULAYE: Yes. Because in
12 my phone it's not accurate.
13 MS. PECK: Okay.
14 MR. ABDOULAYE: I'm just, is a
15 app. Is the same thing when you guys on
16 Saturday, you take the measurement in the back
17 alley. And it was, Eighteenth Lounge music
18 was so loud, and Ozio music was not loud.
19 I don't know how you guys can
20 measure the Ozio with different music playing
21 the back. I start talking to you in the
22 alley, you guys ignore me and walk away.
Neal R. Gross and Co., Inc. 202-234-4433 Page 189 1 MS. PECK: I don't even remember
2 seeing you in the alley.
3 (Crosstalk)
4 MR. ABDOULAYE: And I met the ABC
5 lady in the alley, because I was in the alley.
6 I go every 15 minutes to make sure music is
7 not loud, make sure the trash is fine. That's
8 where I met Felicia in the alley. So --
9 MS. PECK: But the question is
10 really, how do you set the limit inside for
11 your operation? So do you have a specific
12 setting on your machinery that you use? Or
13 how do you know how loud it is when you're
14 operating the club?
15 MR. ABDOULAYE: Okay, the louder
16 club is not from the music. You play --
17 MS. PECK: Well I'm asking about
18 the music. I want to know about the amplified
19 sound coming out of your system in the roof
20 deck area.
21 MR. ABDOULAYE: From us in the
22 roof, I say 80, 88, 89.
Neal R. Gross and Co., Inc. 202-234-4433 Page 190 1 MS. PECK: But you don't know?
2 MR. ABDOULAYE: I do have the
3 measurement, but is not accurate. I wanted to
4 give you the number, but is not loud. People
5 can have conversation --
6 MS. PECK: But you had a sound
7 engineer come in. So you didn't ask him to
8 help you determine how loud it is when you set
9 it in your settings?
10 MR. ABDOULAYE: That's why test
11 it outside with him for three hours. And we
12 call Steven, he was in the roof top, to make
13 sure keep putting music down to get to the
14 level he say that's fine. And we sit on that
15 level.
16 MS. PECK: Okay.
17 MR. ABDOULAYE: Yes.
18 MS. PECK: But before that you
19 didn't have any system in place that told you
20 how loud you're operating the music?
21 MR. ABDOULAYE: Let me tell you,
22 system we had before, we don't play loud
Neal R. Gross and Co., Inc. 202-234-4433 Page 191 1 music. Since agreements, if anybody complain
2 we put the music down. We didn't have no
3 complaint, we never, the music wasn't that
4 loud so anybody to complain about it.
5 MS. PECK: So your system is you
6 don't, you keep playing whatever you want to
7 until you get a complaint?
8 MR. ABDOULAYE: We don't play
9 whatever we want to. We play what is good for
10 the place, for the neighbors. It has to be,
11 it's for everybody.
12 MS. PECK: No further questions.
13 MEMBER ALBERTI: Okay. Board
14 questions? Actually, before we have Board
15 questions, Mr. Fonseca, you had offered, we
16 had a request from Ms. Peck for the incident
17 log, all right. So do you want to see this,
18 Ms. Peck? I mean, what's your aim here with
19 that?
20 MS. PECK: Well I, what I aim to
21 do --
22 MEMBER ALBERTI: The reason I ask
Neal R. Gross and Co., Inc. 202-234-4433 Page 192 1 is that we have a whole notebook full of
2 incidents here.
3 MS. PECK: Right.
4 MR. FONSECA: Well, no. A lot of
5 the pages is where there's no complaints, no
6 complaints, no complaints.
7 MEMBER ALBERTI: Right. But my
8 point is, there's lots of pages.
9 MS. PECK: Yes. What I hoped to
10 do with that is, when Ann Kappel testifies,
11 then I was going to ask her how many complaint
12 is she aware has been made. And then, if it's
13 consistent with what we've heard here, then no
14 further questions.
15 And if, in fact, she says there's
16 actually quite a lot more complaints than what
17 we've heard, then that would be a discrepancy
18 in the record keeping, which is required by
19 the settlement agreement. And the complaints,
20 or the frequency of contact from the
21 surrounding neighborhood.
22 MEMBER ALBERTI: Mr. Fonseca, do
Neal R. Gross and Co., Inc. 202-234-4433 Page 193 1 you have any --
2 MS. PECK: I don't need to see
3 that yet, until I --
4 MEMBER ALBERTI: But wait. Mr.
5 Fonseca, do you have any objections to her, to
6 the protestants reviewing that?
7 MR. FONSECA: No.
8 MEMBER ALBERTI: Okay. Here's the
9 deal. After this witness we're going to take
10 a five minute break. Not only because we've
11 been here a long time, but we have to discuss
12 scheduling, because we're going a long time
13 here. And so, that would be an opportunity
14 for them to review it, if that's agreeable to
15 you.
16 MR. FONSECA: Yes, yes.
17 MEMBER ALBERTI: Okay. So let's
18 plan on that. Ms. Peck, is that okay?
19 MS. PECK: That sounds good.
20 MEMBER ALBERTI: Okay, good.
21 Board questions? Anyone? Mr. Brooks.
22 MEMBER BROOKS: Yes, thank you.
Neal R. Gross and Co., Inc. 202-234-4433 Page 194 1 What type of music do you play on the roof?
2 MR. ABDOULAYE: We play
3 everything. We play hip hop, house,
4 international, Spanish, everything.
5 MEMBER BROOKS: Okay. And how
6 many nights a week?
7 MR. ABDOULAYE: Mostly Friday,
8 Saturdays.
9 MEMBER BROOKS: Friday and
10 Saturday.
11 MR. ABDOULAYE: Like, Monday
12 through Thursday, by 11 o'clock, 12:00 a.m. we
13 not playing a lot of music. Only Friday,
14 Saturday we have a DJ. Monday through
15 Thursday is not that much DJ. Maybe once,
16 twice a month.
17 MEMBER BROOKS: Okay. So Friday
18 and Saturday there's a DJ?
19 MR. ABDOULAYE: Yes.
20 MEMBER BROOKS: And what are the
21 hours?
22 MR. ABDOULAYE: We do from 5
Neal R. Gross and Co., Inc. 202-234-4433 Page 195 1 o'clock afternoon to 2:30 a.m. That's the
2 last call, 2:30 a.m., 2:35 a.m.
3 MEMBER BROOKS: Okay.
4 MEMBER ALBERTI: Mr. Jones?
5 MEMBER JONES: Thank you, Mr.
6 Chairman. So the, just to get back to the
7 system that you have inside. Is it, is the
8 entire system -- Well, how many sound systems
9 do you have? Let me ask that.
10 MR. ABDOULAYE: Well, I mean, we
11 have two --
12 MEMBER JONES: Well, I mean, I'm
13 sorry. That's a bad question. How many DJ
14 areas do you have?
15 MR. ABDOULAYE: We just have one
16 DJ area.
17 MEMBER JONES: How many DJ areas
18 do you have in the entire establishment?
19 MR. ABDOULAYE: Three DJ areas.
20 MEMBER JONES: Three DJ areas?
21 MR. ABDOULAYE: Second floor, yes.
22 MEMBER JONES: Okay. The rooftop
Neal R. Gross and Co., Inc. 202-234-4433 Page 196 1 DJ area is separate and distinct from any of
2 the other DJ areas? Okay. Is the sound
3 system separate and distinct from any of the
4 other areas? Yes?
5 MR. ABDOULAYE: Yes.
6 MEMBER JONES: Okay. The sound
7 system that you have upstairs, do you have any
8 type of regulator on that system to minimize
9 the amount of power --
10 MR. ABDOULAYE: Yes.
11 MEMBER JONES: -- that is being
12 sent to the speakers?
13 MR. ABDOULAYE: Yes.
14 MEMBER JONES: What is that?
15 MR. ABDOULAYE: We have a
16 amplifier in the back, and we low it anytime
17 we, you know, we want to.
18 MEMBER JONES: Okay. So do you
19 have a limiter? So you have a control
20 mechanism. But do you have a limiter
21 available to you?
22 MR. ABDOULAYE: I don't understand
Neal R. Gross and Co., Inc. 202-234-4433 Page 197 1 the question. Sorry.
2 MEMBER JONES: So you have the
3 ability to turn up and turn down the volume?
4 MR. ABDOULAYE: Yes.
5 MEMBER JONES: Is there anything
6 that will limit the amount of power that's
7 being sent to the speakers, regardless of how
8 high you turn up the volume, or you increase
9 the amplitude?
10 MR. ABDOULAYE: We have for them,
11 we put limit in the amplifier in the back.
12 MEMBER JONES: You have a limiter
13 on the amplifier?
14 MR. ABDOULAYE: Yes. Is not, is
15 like if the DJ want to go higher he can't go
16 higher.
17 MEMBER JONES: There's a limiter
18 back there?
19 MR. ABDOULAYE: There's no limiter
20 back there. But we set it up like, nobody can
21 go there. Only me, I can go there, or another
22 manager.
Neal R. Gross and Co., Inc. 202-234-4433 Page 198 1 MEMBER JONES: Is there a limiter
2 that you have --
3 MR. ABDOULAYE: I don't, so no.
4 MEMBER JONES: -- integrated into
5 your --
6 MR. ABDOULAYE: So no.
7 MEMBER JONES: No. Okay. If you
8 do not have a limiter integrated into your
9 system, right? So you can turn up the
10 amplitude on your amplifier basically whenever
11 you choose to do so, correct?
12 MR. ABDOULAYE: Yes.
13 MEMBER JONES: Is there any
14 mechanism, any procedure, any SOP that you
15 have in place in order to ensure that you're
16 at the designated levels that were deemed to
17 be appropriate by the sound engineer report
18 that you paid for and received back in 2010?
19 MR. ABDOULAYE: Usually I use the
20 app I have.
21 MEMBER JONES: Do you have a SOP
22 or procedure? So the app you have will allow
Neal R. Gross and Co., Inc. 202-234-4433 Page 199 1 you to go wherever you want?
2 MR. ABDOULAYE: Yes.
3 MEMBER JONES: Right? So that's
4 not helping you limit or regulate your sound
5 level, right? So there's no guarantee that
6 the minute the sound engineer walked out of
7 your door and left this report in your hands,
8 that you didn't immediately turn up the volume
9 on your system to whatever it is you felt like
10 you wanted it to be?
11 MR. ABDOULAYE: We don't have
12 system that's monitored, no.
13 MEMBER JONES: You don't have a
14 system that what?
15 MR. ABDOULAYE: You said, what the
16 question you say? We have anything to monitor
17 the music in the back?
18 MEMBER JONES: No. My subsequent
19 question to that is, what process, procedure,
20 SOP, Standard Operating Procedure do you have
21 in place to ensure that the level that your
22 amplification system is set at for rooftop
Neal R. Gross and Co., Inc. 202-234-4433 Page 200 1 activities is no greater than the level it was
2 set at when it was determined by the sound
3 engineer in 2010 what the appropriate level
4 should be?
5 MR. ABDOULAYE: No.
6 MEMBER JONES: You don't?
7 MR. ABDOULAYE: No.
8 MEMBER JONES: Okay. What was
9 that level? What is that level?
10 MR. ABDOULAYE: The level is 88.
11 MEMBER JONES: Eighty-eight?
12 MR. ABDOULAYE: Yes.
13 MEMBER JONES: And how do you set
14 that 88? How do you set that? What does that
15 equate to on the dial, right? So I'm assuming
16 your amplifier doesn't have a measurement of
17 dBa as 88 on it. Or does it?
18 MR. ABDOULAYE: No. We have --
19 MEMBER JONES: Okay. So what is
20 the exact measurement on your device that you
21 set that to?
22 MR. ABDOULAYE: Okay. Amplifier
Neal R. Gross and Co., Inc. 202-234-4433 Page 201 1 goes from one to eight.
2 MEMBER JONES: Correct.
3 MR. ABDOULAYE: All right. We
4 stop at four.
5 MEMBER JONES: You stop at four?
6 MR. ABDOULAYE: Yes, four. That's
7 before we have the technician, we always stop
8 at four?
9 MEMBER JONES: So what does four
10 equate to in terms of dBa?
11 MR. ABDOULAYE: The four is like
12 88.
13 MEMBER JONES: It equates to 88?
14 MR. ABDOULAYE: Yes.
15 MEMBER JONES: Okay.
16 MR. ABDOULAYE: Eighty-eight, 86.
17 MEMBER JONES: When did you set it
18 to 88? Or when did you set it to four?
19 Because this report in 2010 says the correct
20 level, or the acceptable level was 92. So
21 that would equate to something higher than
22 four on your amplifier.
Neal R. Gross and Co., Inc. 202-234-4433 Page 202 1 MR. ABDOULAYE: Okay. For the
2 2010 it was test. We played loud the music we
3 can play to see how it affect the neighbors.
4 It was not the music we want to set the level
5 at.
6 We played louder music, and we
7 keep putting it down little bit by little bit
8 to get the level. Like right now, we don't
9 exceed 88 every Friday, Saturday. We always
10 below 88.
11 MEMBER JONES: But you, so the
12 only way you know that is that your, you're
13 saying that there is a procedure that you have
14 in place that prevents anyone from raising
15 that dial above four, yes?
16 MR. ABDOULAYE: No. I say --
17 MEMBER JONES: Okay.
18 MR. ABDOULAYE: -- on the
19 amplifier we go from one to eight. And I
20 start at four. When it's four, it's like 88,
21 86 in the rooftop.
22 MEMBER JONES: So four. Because
Neal R. Gross and Co., Inc. 202-234-4433 Page 203 1 you don't know that it's 88 or 86. You're
2 just basing that esoterically off of the
3 measurements that were just taken on Friday?
4 MR. ABDOULAYE: Yes, yes.
5 MEMBER JONES: That's a guess.
6 MR. ABDOULAYE: Yes, a guess.
7 MEMBER JONES: The only reason you
8 know that know is because --
9 (Crosstalk)
10 MR. ABDOULAYE: Yes.
11 MEMBER JONES: Right. Okay. So
12 let's be real.
13 MR. ABDOULAYE: Yes, is a guess.
14 MEMBER JONES: All right.
15 MR. ABDOULAYE: Okay.
16 MEMBER JONES: So you set the
17 level to four. How did you come to determine
18 that four is the right number? Why did you
19 set it there?
20 MR. ABDOULAYE: I set four because
21 when I, every time we put the music I go to
22 the alley. And I use my measurement in the
Neal R. Gross and Co., Inc. 202-234-4433 Page 204 1 alley to make sure the music is not loud.
2 MEMBER JONES: Okay. So what was
3 the limit that you were seeking? What was
4 your goal? What was your agenda? What where
5 you looking for?
6 MR. ABDOULAYE: Outside is 60, 62.
7 MEMBER JONES: Sixty, 62. So the
8 maximum that you are allowing yourself to read
9 on your meter was 62?
10 MR. ABDOULAYE: Between 59, 60,
11 62, yes.
12 MEMBER JONES: The maximum you are
13 allowing yourself to read on your meter was
14 62?
15 MR. ABDOULAYE: In the outside,
16 yes. Yes.
17 MEMBER JONES: Okay. At what
18 point were you measuring it? How far away
19 from the building were you? What was your
20 point of reference?
21 MR. ABDOULAYE: I'd say in the
22 alley by the, it's like maybe say three feet,
Neal R. Gross and Co., Inc. 202-234-4433 Page 205 1 four.
2 MEMBER JONES: Three feet, four,
3 away from what?
4 MR. ABDOULAYE: The Ozio building,
5 by the alley.
6 MEMBER JONES: Okay. And you're
7 on the back side, or the side?
8 MR. ABDOULAYE: Back side, back
9 side.
10 MEMBER JONES: Okay. So, do you
11 measure from that same point all the time?
12 MR. ABDOULAYE: Yes.
13 MEMBER JONES: Okay. Do you
14 measure the same time of day?
15 MR. ABDOULAYE: Yes. Because when
16 you go by other side of the alley, you don't
17 hear no music. You don't hear anything. Only
18 you have to go inside where the, like small
19 parking garage.
20 MEMBER JONES: Understood. But
21 you measure at the same time of day?
22 MR. ABDOULAYE: Yes.
Neal R. Gross and Co., Inc. 202-234-4433 Page 206 1 MEMBER JONES: Okay. Are you
2 doing anything to discern -- What type of
3 measurements are you doing? Are you doing an
4 average? Or are you doing something
5 different? Do you know?
6 MR. ABDOULAYE: It's a average. I
7 just use a phone app.
8 MEMBER JONES: You use the phone
9 app?
10 MR. ABDOULAYE: Yes.
11 MEMBER JONES: Oh, okay. So you
12 use a phone app?
13 MR. ABDOULAYE: Yes.
14 MEMBER JONES: That's the device
15 that you're using to take your decibel
16 reading?
17 MR. ABDOULAYE: Yes.
18 MEMBER JONES: Okay. Got it. So
19 you have no idea. You just, you don't know
20 what it's doing, it's just giving you a
21 reading?
22 MR. ABDOULAYE: Yes.
Neal R. Gross and Co., Inc. 202-234-4433 Page 207 1 MEMBER JONES: Okay. What is
2 preventing anyone from going in there and
3 turning it up above four, like 4.5?
4 MR. ABDOULAYE: Is in the back.
5 And only employees allowed to go there.
6 MEMBER JONES: So anybody who is
7 an employee of the establishment has access to
8 that?
9 MR. ABDOULAYE: He can't go there,
10 no.
11 MEMBER JONES: Excuse me?
12 MR. ABDOULAYE: Only employees can
13 go there.
14 MEMBER JONES: Right. So anyone
15 who is an employee of the establishment has
16 access to that dial control?
17 MR. ABDOULAYE: No.
18 MEMBER JONES: Who does?
19 MR. ABDOULAYE: Only employees?
20 I'm sorry. I answered the question. Only me,
21 the other managers, and the wait staff, the
22 bartenders can go back.
Neal R. Gross and Co., Inc. 202-234-4433 Page 208 1 MEMBER JONES: Okay. So maybe
2 it's not translating. So who, what's an
3 employee? I'm saying anyone who is an
4 employee.
5 MR. ABDOULAYE: DJ is not
6 employee. DJ is a contractor.
7 MEMBER JONES: I didn't designate
8 the DJ.
9 MR. ABDOULAYE: Okay. Go ahead.
10 MEMBER JONES: I'm saying, anyone
11 who is an employee --
12 MR. ABDOULAYE: Yes.
13 MEMBER JONES: -- can go back and
14 turn that dial to whatever setting they want?
15 There's nothing that's preventing them from
16 doing that?
17 MR. ABDOULAYE: Yes.
18 MEMBER JONES: Yes?
19 MR. ABDOULAYE: Yes.
20 MEMBER JONES: Okay. Do you have
21 procedures, rules or guidelines which
22 stipulate that you and only you can touch the
Neal R. Gross and Co., Inc. 202-234-4433 Page 209 1 dial?
2 MR. ABDOULAYE: Only me and
3 another manager can touch the music, yes.
4 MEMBER JONES: Do you have that in
5 writing?
6 MR. ABDOULAYE: Not with me here.
7 MEMBER JONES: No. Do you have it
8 in writing?
9 MR. ABDOULAYE: Yes.
10 MEMBER JONES: Are your employees
11 trained on that?
12 MR. ABDOULAYE: Yes.
13 MEMBER JONES: Okay. So if the DJ
14 asks them, anyone other than you, to go back
15 there, someone in the wait staff, another
16 manager, to go back there and say, hey, I need
17 to pump this up a little bit, can I get five?
18 MR. ABDOULAYE: They have to ask
19 me.
20 MEMBER JONES: Can you turn it up
21 to five? They have to come to you first? Has
22 that ever happened?
Neal R. Gross and Co., Inc. 202-234-4433 Page 210 1 MR. ABDOULAYE: Yes. It happened
2 a couple of times.
3 MEMBER JONES: Okay. And what do
4 you do?
5 MR. ABDOULAYE: I just keep the
6 same music, whatever the music I feel in the
7 back with my reading, that's what I stay at.
8 MEMBER JONES: Okay. So you
9 mentioned earlier that you have a process by
10 which you play the loud music at whatever
11 level it is until you get a complaint, right?
12 And then you turn it down when you get a
13 complaint.
14 MR. ABDOULAYE: No. It's not I
15 say I play the music whatever I play it. I
16 say, we play music. People, you can hear
17 conversation when the music is on.
18 But if a neighbor call, complain,
19 I go in the back, I double check, make sure if
20 the music is loud we put it down, same like in
21 agreement. Whenever they call and complain I
22 check to make sure. There's no more complaint
Neal R. Gross and Co., Inc. 202-234-4433 Page 211 1 after that. I take care of the problem.
2 MEMBER JONES: Okay. So every
3 time someone complains the process is, you go
4 in the back and you turn it down?
5 MR. ABDOULAYE: Yes.
6 MEMBER JONES: Turn it down to
7 what?
8 MR. ABDOULAYE: Turn it down to
9 nobody can call or complain?
10 MEMBER JONES: What level is that?
11 So how do you know that? What's your feedback
12 loop to make that determination?
13 MR. ABDOULAYE: The feedback the
14 same amplifier I have been doing for the past
15 two, two and a half years was no complaint,
16 until right now. Until February 20th it was
17 not Ozio sound system.
18 It was a band that play their own
19 sound system. And it was loud. And I knew it
20 was loud. Somebody called, complain, and I
21 took to the band to lower the bass and
22 everything.
Neal R. Gross and Co., Inc. 202-234-4433 Page 212 1 MEMBER JONES: So the process that
2 you have is, someone calls to complain, you go
3 in the back, you turn it down. Do you call
4 them back to say, is this low enough?
5 MR. ABDOULAYE: That's a good
6 question. On February 20th one of the
7 neighbor call, complain. We ask her for her
8 cell phone number, or number we can call her
9 back to make sure is fine.
10 She say, you promise me one thing,
11 if I call, if I give you my number, you're not
12 calling me tonight. And how I can call them
13 back, if they don't give us a number to call
14 them back?
15 MEMBER JONES: So at that point,
16 what did you do?
17 MR. ABDOULAYE: We will put it
18 down. She never call after that.
19 MEMBER JONES: Okay. So you have
20 it set at four all the time?
21 MR. ABDOULAYE: Yes. Four,
22 sometime --
Neal R. Gross and Co., Inc. 202-234-4433 Page 213 1 MEMBER JONES: The neighbor
2 called, complained when it was set at four?
3 MR. ABDOULAYE: No. That time she
4 complain, I told you we had a band. They were
5 playing their own sound system.
6 MEMBER JONES: Oh, okay.
7 MR. ABDOULAYE: Not our sound
8 system. They bring their own sound system.
9 MEMBER JONES: Okay. So when it,
10 are you telling me right now, under oath, that
11 when you had it set at four you never received
12 a complaint?
13 MR. ABDOULAYE: No.
14 MEMBER JONES: Okay. Thank you.
15 MR. ABDOULAYE: I promise you.
16 MEMBER JONES: Thank you, Mr.
17 Chairman.
18 MEMBER ALBERTI: Mr. Rodriguez?
19 MEMBER RODRIGUEZ: Mr. Abdoulaye,
20 thank you for coming in. A couple of
21 questions. Mine is not as technical as the
22 previous questions. You're now a human
Neal R. Gross and Co., Inc. 202-234-4433 Page 214 1 dosimeter. If you shut off all the sound at
2 Ozio's, at 10 o'clock what would your
3 dosimeter tell you, what level?
4 MR. ABDOULAYE: In the alley, or
5 in the --
6 MEMBER RODRIGUEZ: No. In the
7 middle of your dance floor on the roof.
8 MR. ABDOULAYE: I would say 70,
9 75.
10 MEMBER RODRIGUEZ: That takes care
11 of all the ambient sounds, the cars,
12 everything? The crowds, the cars in the
13 alley?
14 MR. ABDOULAYE: Only one
15 condition. If Eighteenth Street Lounge is
16 closed I can say 70, 75.
17 MEMBER RODRIGUEZ: Okay. So at 10
18 o'clock that night, what would be dosimeter's
19 --
20 MR. ABDOULAYE: When, tonight?
21 MEMBER RODRIGUEZ: No, 10 o'clock.
22 And let's say Saturday night.
Neal R. Gross and Co., Inc. 202-234-4433 Page 215 1 MR. ABDOULAYE: With the music on?
2 MEMBER RODRIGUEZ: No, no.
3 Everything is quiet, including you. What do
4 you hear? What dosimeters do you hear in the
5 middle of your floor?
6 MR. ABDOULAYE: You hear fans.
7 MEMBER RODRIGUEZ: Okay. No
8 ambient sounds. How about 12 midnight?
9 MR. ABDOULAYE: The same thing,
10 the fan or the other club music?
11 MEMBER RODRIGUEZ: And 2:00 a.m.?
12 MR. ABDOULAYE: The same thing,
13 the other club music, fans.
14 MEMBER RODRIGUEZ: That's your
15 reading?
16 MR. ABDOULAYE: Yes. Is not, yes.
17 MEMBER RODRIGUEZ: Okay. Thank
18 you.
19 MR. ABDOULAYE: No problem.
20 MEMBER ALBERTI: Any other Board
21 Members? Okay. Mr. Fonseca, redirect?
22 MR. FONSECA: Yes, if I can
Neal R. Gross and Co., Inc. 202-234-4433 Page 216 1 redirect? Sall, do you recall when Mr.
2 Henning came on Friday, that you had Carlos
3 Beaumont there --
4 MR. ABDOULAYE: Yes.
5 MR. FONSECA: -- with his laptop?
6 MR. ABDOULAYE: Yes.
7 MR. FONSECA: What does Mr.
8 Beaumont do?
9 MR. ABDOULAYE: He was, tried to
10 set up the music and the level. Mr. Henning
11 say he's good. It's 63 dB in the alley. He
12 was going to set up the music the same level.
13 We can't go up, we can't go down.
14 MR. FONSECA: Does he program that
15 --
16 MR. ABDOULAYE: Yes.
17 MR. FONSECA: -- system so that --
18 MR. ABDOULAYE: Yes.
19 MR. FONSECA: -- it has a limiter?
20 MR. ABDOULAYE: Yes.
21 MR. FONSECA: Did you understand
22 what --
Neal R. Gross and Co., Inc. 202-234-4433 Page 217 1 MR. ABDOULAYE: I not understand
2 his question.
3 MR. FONSECA: -- Mr. Jones was
4 saying?
5 MR. ABDOULAYE: I don't understand
6 his question, yes.
7 MR. FONSECA: Does Carlos need a
8 laptop, do you all need a laptop to get into
9 your system --
10 MR. ABDOULAYE: Yes.
11 MR. FONSECA: -- to set up certain
12 things?
13 MR. ABDOULAYE: Yes.
14 MR. FONSECA: Does that include
15 limiting how the volume of that system works?
16 MR. ABDOULAYE: The volume system
17 right now, whatever we done in Friday, it
18 can't go up more than that.
19 MR. FONSECA: Okay.
20 MR. ABDOULAYE: It's staying that
21 way. Nobody can go up, nobody can go down.
22 MR. FONSECA: Did he readjust it
Neal R. Gross and Co., Inc. 202-234-4433 Page 218 1 based on the readings --
2 MR. ABDOULAYE: Yes.
3 MR. FONSECA: -- that Mr. Henning
4 did?
5 MR. ABDOULAYE: Yes.
6 MR. FONSECA: Is that 88 dBa now
7 part of the --
8 MR. ABDOULAYE: Yes.
9 MR. FONSECA: -- equation in
10 there?
11 MR. ABDOULAYE: Yes.
12 MR. FONSECA: Okay. Thank you.
13 MR. ABDOULAYE: It can't go more
14 up than that now.
15 MEMBER ALBERTI: Ms. Peck?
16 MS. PECK: No further questions.
17 MEMBER ALBERTI: Okay. We're
18 going to have additional questions from the
19 Board.
20 MEMBER SHORT: Yes. I'd just like
21 to ask --
22 MEMBER ALBERTI: Mr. Short.
Neal R. Gross and Co., Inc. 202-234-4433 Page 219 1 MEMBER SHORT: You mentioned
2 earlier in your testimony that when you have
3 a live band --
4 MR. ABDOULAYE: Yes.
5 MEMBER SHORT: -- that's when you
6 had complaints?
7 MR. ABDOULAYE: Yes.
8 MEMBER SHORT: Now that you know
9 that, have you put anything in place --
10 MR. ABDOULAYE: We're not doing
11 live band no more.
12 MEMBER SHORT: No more live band?
13 MR. ABDOULAYE: No more live band.
14 MEMBER SHORT: No more questions.
15 MEMBER ALBERTI: Any further
16 questions from either side on that one
17 question?
18 MS. PECK: Just one last question.
19 MEMBER ALBERTI: Yes, Ms. Peck.
20 MS. PECK: Have you only had a
21 live band once?
22 MR. ABDOULAYE: No. We had live
Neal R. Gross and Co., Inc. 202-234-4433 Page 220 1 band a couple of times.
2 MS. PECK: A couple of times?
3 MR. ABDOULAYE: yes.
4 MS. PECK: How many times?
5 MR. ABDOULAYE: A lot of times. I
6 can't tell you how many times. I had a couple
7 of times a live band.
8 MS. PECK: So this is a change in
9 your business practice is, you're no longer
10 having live bands?
11 MR. ABDOULAYE: It's not by change
12 of business practice. Like, we try to be good
13 neighbors. Like with Ms. Ann, we talked to
14 her before. And we try, I try to see what's
15 good for them and good for us.
16 And she told us one time in email,
17 when roof is open keep it that way. It was
18 good music, and it was not loud. It was like
19 2011. And we try to just be good neighbors.
20 But it seem like, I don't think
21 you can hear the music at Ozio like 60 feet
22 from Ozio. I don't know how you can hear from
Neal R. Gross and Co., Inc. 202-234-4433 Page 221 1 700 feet.
2 MS. PECK: Okay. So let me ask
3 you this. You just said that your personal
4 goal has been to try to measure 60 to 62
5 decibels when you're measuring out in the
6 alley.
7 MR. ABDOULAYE: Yes.
8 MS. PECK: But now you've had a
9 licensed sound engineer come back and tell
10 you, if you have, are playing 88 decibels in
11 your roof deck, you can only hit that level if
12 you have the roof closed. So is the new
13 business plan to only play music at that level
14 when the roof is closed?
15 MR. ABDOULAYE: We play the music
16 level right now at 88, the way that Mr.
17 Henning set up the music, and say that is
18 enough to --
19 MS. PECK: With the roof closed,
20 or with the roof open?
21 MR. ABDOULAYE: Whether the roof
22 is closed, the roof is open, both way.
Neal R. Gross and Co., Inc. 202-234-4433 Page 222 1 MS. PECK: So you still plan to
2 continue operating with the roof open, set at
3 88?
4 MR. ABDOULAYE: No. We not set,
5 operating when the roof open at 88. We just
6 set where the legal noise at, which is over
7 65, 60 dB outside. That's a problem. But we
8 cannot say we will operate playing 50 or 70 or
9 60. We just want to go with the law.
10 MS. PECK: Right.
11 MR. ABDOULAYE: The law say --
12 MS. PECK: My question is, because
13 I'm just trying to understand what your
14 instructions are at this point, after having
15 this readjustment, which is what you called
16 it. The sound engineer came, he took a
17 measurement.
18 He said, when it's 88 and the roof
19 is closed, then you do not exceed the ambient
20 level in the alley. You've got the 60, 62
21 level. However, when you are playing 88 and
22 the roof is open, you have 70 down there,
Neal R. Gross and Co., Inc. 202-234-4433 Page 223 1 which is ten decibels over the 60 ambient
2 level.
3 So what is the business plan to
4 deal with that? Is it to bring the noise
5 level down further when the roof is open? Or
6 is it to not open the roof? Or is it to
7 continue to operate with sound levels at 70 in
8 the alley?
9 MR. ABDOULAYE: No. If we have to
10 adjust the level. If the level 88, we say 70.
11 If we put it 85 it be 60, we do it.
12 MS. PECK: But you don't know,
13 because that hasn't been planned yet?
14 MR. ABDOULAYE: Let me tell you
15 the plan right now. Because when we open the,
16 when we close the roof one time, Anna say
17 music was loud. When we open the roof, she
18 say the music was now loud. So we decrease
19 when the roof was open, you know.
20 Is mean, if we go 85 and make it
21 be 60, that's fine. But when we measure in
22 the back, same like you guys measure in the
Neal R. Gross and Co., Inc. 202-234-4433 Page 224 1 back, it was only me and him. And I can't
2 even talk to him, because he tell me be quiet.
3 When people do dinner in the back
4 he say they have to wait until all the fan
5 off, nobody talking, he can take the
6 measurement. And you guys taking the
7 measurement was louder music from the other
8 places. And you guys talk and have a
9 conversation.
10 I don't know how you get it was 70
11 or 75. I do the same thing. If we have to go
12 to 60, I go 65, or go to 40, if the Board tell
13 me go to 40 --
14 MEMBER ALBERTI: Mr. Abdoulaye,
15 Mr. Abdoulaye, I think you're getting far off
16 --
17 MR. ABDOULAYE: Yes, I'm sorry.
18 That's fine.
19 MEMBER ALBERTI: Let's stick to
20 the question again, please.
21 MR. ABDOULAYE: Yes.
22 MS. PECK: No further questions.
Neal R. Gross and Co., Inc. 202-234-4433 Page 225 1 MEMBER ALBERTI: Ms. Peck, any
2 other further questions?
3 MS. PECK: That's it, thank you.
4 MEMBER ALBERTI: Okay. Thank you,
5 Mr. Abdoulaye. All right. You may step,
6 please do.
7 MR. FONSECA: Are we doing to go
8 on five minutes now?
9 MEMBER ALBERTI: Pardon? Let's
10 take a ten minute break.
11 MR. FONSECA: Ten minutes?
12 MEMBER ALBERTI: Because I know
13 that's realistically what it's going to be.
14 All right. And you'll have a chance to take
15 a look at the incident log if you'd like.
16 (Whereupon, the hearing in the
17 above-entitled matter went off the record at
18 4:48 p.m. and back on the record at 5:04 p.m.)
19 MEMBER ALBERTI: We are back on
20 the record. Before we continue with the case
21 before us, I'm going to announce that the case
22 that was to follow this this afternoon at
Neal R. Gross and Co., Inc. 202-234-4433 Page 226 1 4:30, Case 13-PRO-00132, Sammy Restaurant LLC
2 trading as Chi Cha lounge, that case has been
3 postponed until March 28th at 10:00 a.m.
4 Okay, so I think we're ready to
5 proceed.
6 MR. FONSECA: Do we need to put on
7 the record any rescheduling before, to do any
8 administrative thing on the next --
9 MEMBER ALBERTI: I just put on the
10 record that we're rescheduling the case after
11 this. Thank you for that, Mr. Fonseca.
12 MR. FONSECA: All right. If I may
13 then, I think I have a little bit of time. I
14 was going to put Mr. Christacos on for me, a
15 very short period of time.
16 And hopefully cross on what direct
17 was about won't take us too, too long. And
18 Ms. Peck has her own witnesses that could
19 prove her case. I'm not sure he's going to
20 prove it for her.
21 MEMBER ALBERTI: Okay.
22 MR. FONSECA: The Board members,
Neal R. Gross and Co., Inc. 202-234-4433 Page 227 1 as we say, you all have the luxury of asking
2 the questions and getting the answers you
3 want.
4 MEMBER ALBERTI: Unfortunately
5 it's too much of a luxury. All right, so I
6 would admit to it. Okay, so Mr. Fonseca --
7 MR. FONSECA: I call Steven
8 Christacos.
9 MEMBER ALBERTI: Okay. Mr.
10 Christacos, would you raise your right hand?
11 And do you solemnly affirm that the testimony
12 you're about to give will be the truth, the
13 whole truth, and nothing but the truth?
14 MR. CHRISTACOS: I do.
15 MEMBER ALBERTI: Thank you.
16 Please be seated.
17 MR. FONSECA: Would you please
18 identify, give your name and your title with
19 the Licensee's corporate entity?
20 MR. CHRISTACOS: My name is Steven
21 Christacos. I am the Vice President of Ozio
22 Martini and Cigar Lounge, located at 1813 M
Neal R. Gross and Co., Inc. 202-234-4433 Page 228 1 Street Northwest, Washington D.C.
2 MR. FONSECA: Mr. Christacos, you
3 were involved with the negotiations for the
4 two agreements and the one that's in place
5 now, correct?
6 MR. CHRISTACOS: Correct.
7 MR. FONSECA: And you were the one
8 that directed requests and coordination of the
9 2010 sound test?
10 MR. CHRISTACOS: That's correct.
11 In the beginning, we were trying to get our
12 business or the rooftop open as soon as we
13 could, and we asked if we could speed up the
14 process and not go through the whole hearing.
15 And that's when we went into a
16 voluntary agreement process with the
17 neighbors. So even our voluntary agreement
18 was completely voluntary.
19 MR. FONSECA: All right. And
20 after the testing, is it accurate that at that
21 time Ms. Kappel, who was negotiating for
22 Jefferson Row, wanted to do testing in
Neal R. Gross and Co., Inc. 202-234-4433 Page 229 1 addition so when you actually had, you know,
2 customers there.
3 In other words, let me rephrase
4 that. Were you open with the public there
5 when we did the testing in 2010?
6 MR. CHRISTACOS: Yes, I believe
7 so.
8 MR. FONSECA: I don't think you
9 have people in there yet.
10 MR. CHRISTACOS: When we did the
11 testing with Mr. Henning?
12 MR. FONSECA: With Mr. Henning,
13 you didn't have customers yet.
14 MR. CHRISTACOS: No.
15 MR. FONSECA: That was back in
16 October of '10, is that correct?
17 MR. CHRISTACOS: No, that's
18 correct. We did the testing with --
19 (Crosstalk)
20 MR. FONSECA: And you did not have
21 your Certificate of Occupancy yet?
22 MR. CHRISTACOS: I don't believe
Neal R. Gross and Co., Inc. 202-234-4433 Page 230 1 we were even open then yet.
2 MR. FONSECA: That's what I was
3 trying to establish. So at that time, do you
4 recall exchanges of emails as to having the
5 testing period?
6 MR. CHRISTACOS: I believe so. I
7 can't recall the exactly --
8 MR. FONSECA: You recall that that
9 was included --
10 (Crosstalk)
11 MR. FONSECA: -- in the 2010
12 agreement?
13 MR. CHRISTACOS: Pardon me?
14 MR. FONSECA: Was that test period
15 in the 2010 agreement?
16 MR. CHRISTACOS: Yes.
17 MR. FONSECA: And then the test
18 period was removed with the superseding 2011
19 agreement?
20 MR. CHRISTACOS: Yes, that's
21 correct.
22 MR. FONSECA: And when you
Neal R. Gross and Co., Inc. 202-234-4433 Page 231 1 clarified, because Mr. Jones had a good line
2 of questioning. I want to make sure it was
3 clear when you tried with Sall as to whether
4 or not there is a limiter that's in your sound
5 system?
6 MR. CHRISTACOS: Yes, we do have
7 capabilities of limiting the sound. I'm not
8 sure exactly what the component is called.
9 It's made by DBX. It's a processor. It's all
10 computerized.
11 It has to be accessed through
12 software by a laptop, and we don't have the
13 capabilities of doing that. We have to call
14 a sound person to come in and do that.
15 MR. FONSECA: And was that
16 readjusted as the result of last Friday's
17 testing?
18 MR. CHRISTACOS: Yes, it was.
19 MR. FONSECA: And to your
20 knowledge, what is it adjusted to now, or what
21 is the limit?
22 MR. CHRISTACOS: It is my belief
Neal R. Gross and Co., Inc. 202-234-4433 Page 232 1 that it is adjusted even below the 88 dB's to
2 which we had got our last readings at because
3 we weren't able to completely finish the
4 testing because it was getting into business
5 hours where it was disrupting the business.
6 And I told Gerald that he kind of
7 had to wrap things up. So he wasn't able to
8 bring it, or to bring the measurement
9 equipment upstairs to see what that final
10 level was. But we had reduced it beyond the
11 88 dB's which he had measured upstairs and
12 then gone downstairs.
13 And we were communicating back and
14 forth to see where we would be compliant to
15 that 60 dB three feet away from the building.
16 MR. FONSECA: And to segue, that
17 60 dB reading has become a rather important
18 issue at this point in time, hasn't it?
19 MR. CHRISTACOS: Yes, I believe
20 so.
21 MR. FONSECA: And can you tell us
22 why?
Neal R. Gross and Co., Inc. 202-234-4433 Page 233 1 MR. CHRISTACOS: Well frankly, 60
2 dB, you're never going to get to those levels
3 in our alley, ever I don't think unless, you
4 know, I can't even speculate to say what would
5 cause those levels.
6 But even when we were taking the
7 levels back there, we had to stop, you know,
8 for 20 minutes at a time because there was a
9 crane going off or something was going off and
10 we couldn't have this air conditioning unit
11 going and that air conditioning unit going.
12 So we were trying to get it down
13 to where the ambient levels were, you know, so
14 minimal that it would be the most minimal
15 ambient levels. And I don't think you'll ever
16 be able to achieve that on a normal day to day
17 function.
18 MR. FONSECA: So is it your
19 assessment that if you had all the mechanicals
20 on and other music going on as it is in that
21 common alleyway, you would be exceedingly
22 higher than 60 dB?
Neal R. Gross and Co., Inc. 202-234-4433 Page 234 1 MR. CHRISTACOS: Could you repeat
2 the question?
3 MR. FONSECA: If all the
4 mechanicals are on and you have additional
5 music from other establishments playing, it
6 would be higher than the 60 decibel --
7 (Crosstalk)
8 MR. FONSECA: -- as an ambient --
9 MR. CHRISTACOS: I'm pretty sure,
10 yes.
11 MR. FONSECA: Do you know, well
12 are you aware that there's now a noise task
13 force enforcement?
14 MR. CHRISTACOS: Yes, we received
15 the letter from ABC I believe, or actually we
16 received a letter in the mail and then an
17 email on Thursday.
18 And yes, we're aware that they
19 started doing checks on establishments and
20 were going around and that they were going to
21 be unannounced. And we actually were not made
22 aware of any complaints or violations or
Neal R. Gross and Co., Inc. 202-234-4433 Page 235 1 ticketed at all. But --
2 MR. FONSECA: So Ozio hasn't been
3 made aware that they were tested one way or
4 the other?
5 MR. CHRISTACOS: No, sir.
6 MR. FONSECA: Are you aware of any
7 establishments that were tested and may have
8 failed?
9 MR. CHRISTACOS: We did hear about
10 a bar over on Connecticut Avenue named RoseBar
11 that received a violation and now is being
12 closed, or I mean, I don't know if it's a fact
13 or saying it's just what we've been told that.
14 MR. FONSECA: And what is your
15 opinion of having to comply with regulators
16 testing you?
17 MR. CHRISTACOS: I am 100 percent
18 for it. When I was brought into this and my
19 license was protested, we were approached by
20 the neighborhood.
21 And we decided to sit down and
22 have a meeting even before the hearing. So
Neal R. Gross and Co., Inc. 202-234-4433 Page 236 1 we've always had an open line of communication
2 with the neighbors. I sat down with Ms. Peck
3 and Ms. Nichols.
4 And they made aware to me that we
5 were not the problem and that they were sorry
6 that they just bunched us into a collective
7 group of offenders, and that we had a great
8 rapport with the neighbors, and that Jefferson
9 Row had not said anything about us.
10 Ms. Kappel spoke so highly of me
11 and the way I communicated with her. And then
12 as soon as I did not comply to their list of
13 demands, all of a sudden I was made into a
14 violator.
15 I was going to be put on the news
16 and everybody was going to tell, you know,
17 they were going to put my name out on what a
18 disruption to the neighborhood I was.
19 All of a sudden I became this bad
20 guy because I did not want to sign a list of
21 demands that I felt I had to bend over
22 backwards for. So I felt that the line of
Neal R. Gross and Co., Inc. 202-234-4433 Page 237 1 communication as far as being neighborly and
2 friendly was cut right there.
3 MR. FONSECA: Are you still open
4 to complaints coming from Ms. Kappel or anyone
5 at the Jefferson Row?
6 MR. CHRISTACOS: Yes Mr. Fonseca,
7 we actually received a complaint, like we
8 said, a couple weeks ago where we did have a
9 huge jazz brass band. We didn't realize how
10 large of a band that a New Orleans Brass Band
11 band actually has.
12 And you know, we made a mistake on
13 that. And Ms. Kappel did call. And from what
14 we know, we did comply because we weren't able
15 to communicate back. But we tried to turn it
16 down and we didn't receive complaints from
17 anyone else.
18 MR. FONSECA: How late was this?
19 MR. CHRISTACOS: This was about, I
20 would say around 10 o'clock. I wasn't there,
21 so 9:30, 10 o'clock.
22 MR. FONSECA: Is there anything
Neal R. Gross and Co., Inc. 202-234-4433 Page 238 1 else you would like to say?
2 MR. CHRISTACOS: The line of
3 communication is still open there. And you
4 know, we're willing to negotiate with people,
5 but we're not willing to change my whole
6 business.
7 And you know, after I spent a fair
8 amount of money to have somebody come and tell
9 me I need to change my business or have people
10 sleep upstairs where they're supposed to be
11 dancing, I don't think that's fair.
12 MR. FONSECA: And do you want to
13 be held hostage to any random citizen with a
14 hand held listening sound device to tell you
15 you're not in compliance?
16 MR. CHRISTACOS: We would rather
17 the City have somebody official come by and do
18 it just like they're doing it. And like I
19 say, we have complaints about the noise as
20 well.
21 It's just that we're the poster
22 child for everybody because we're the only
Neal R. Gross and Co., Inc. 202-234-4433 Page 239 1 ones who have contact with the neighbors and
2 we're the only ones in the area I think that
3 have such a stringent voluntary agreement.
4 MR. FONSECA: No further
5 questions.
6 MEMBER ALBERTI: Ms. Peck?
7 MS. PECK: Well, having just had
8 myself mentioned here, I have to say I am
9 going to say a few things on my own as well.
10 MR. FONSECA: Can I cross examine
11 you?
12 MS. PECK: Yes, you may because
13 this is a conversation that you've just
14 described that we never had. And I'm rather
15 stunned.
16 And I would love to know what the
17 list of demands are because the only thing I
18 remember asking you, sir, was to have you
19 comply with the law which may mean having to
20 turn down your sound.
21 And all we asked you for was a
22 chance to do a sound test like we've done with
Neal R. Gross and Co., Inc. 202-234-4433 Page 240 1 other --
2 (Crosstalk)
3 MS. PECK: -- bars in the area.
4 So I would like to know what is it that this
5 unreasonable list of demands that I asked you
6 for. I would love to know.
7 MR. CHRISTACOS: I didn't read
8 through the whole white paper. But it was, as
9 far as changing the hours of my business,
10 removing --
11 MS. PECK: I didn't ask for this.
12 MR. CHRISTACOS: Wait.
13 MEMBER ALBERTI: Wait, Ms. Peck?
14 MS. PECK: Okay.
15 MEMBER ALBERTI: We can't have a
16 debate here.
17 (Crosstalk)
18 MEMBER ALBERTI: Wait Ms. Peck,
19 time out --
20 MS. PECK: -- state of shock.
21 Very surprised.
22 MEMBER ALBERTI: -- time out. Ms.
Neal R. Gross and Co., Inc. 202-234-4433 Page 241 1 Peck. Please, please.
2 MS. PECK: Please go ahead.
3 MEMBER ALBERTI: Ms. Peck, look, I
4 gave you all the leeway hoping that you would
5 get to a question. You did. So if you want
6 to stay with that question, let him answer it.
7 Otherwise, you have to move on.
8 MS. PECK: I completely will allow
9 that to happen. Thank you.
10 MEMBER ALBERTI: Okay.
11 MEMBER SILVERSTEIN: I'm sorry if
12 I exceeded the noise limit.
13 MS. PECK: Please tell me the list
14 of demands you think were made to you.
15 MR. CHRISTACOS: Well I got as far
16 as removing my speakers from the $1 million
17 addition that I just built and had been
18 functioning for the last three years without
19 any complaints.
20 And then all of a sudden, my
21 license goes for renewal and like I said, I'm
22 told I'm not the one violating but we're
Neal R. Gross and Co., Inc. 202-234-4433 Page 242 1 including you in the group.
2 I think that would be I stopped
3 reading the list of demands right there. But
4 it was a pretty thick white paper.
5 MS. PECK: Do you have a copy of
6 the white paper?
7 MR. FONSECA: I didn't bring all
8 the reports.
9 MS. PECK: I happen to have a copy
10 of the white paper, so may I present it to him
11 and he can point out the list of demands?
12 MR. FONSECA: I think --
13 MEMBER ALBERTI: Wait, wait, wait.
14 Do you have an objection, Mr. Fonseca because
15 she's -- okay. I think --
16 (Crosstalk)
17 MEMBER ALBERTI: Let me understand
18 here where we're at.
19 (Crosstalk)
20 MEMBER ALBERTI: Mr. Fonseca,
21 please. Ms. Peck I think has asked to show
22 the witness some exhibit. Any objection, Mr.
Neal R. Gross and Co., Inc. 202-234-4433 Page 243 1 Fonseca?
2 MR. FONSECA: No. But included in
3 what that packet was that he's, that when we
4 met is she had a proposed voluntary agreement.
5 I think that's the list of demands he's
6 talking about, which we normally don't put
7 those into the records because they're part of
8 a negotiation.
9 So I can't withdraw his comments,
10 but I think I would have to put that into
11 clarify what we're talking about.
12 MEMBER ALBERTI: I understand
13 that, and I appreciate your alerting me to
14 that and I will be alert to that as we move
15 forward.
16 Ms. Peck, we cannot enter into
17 evidence or have the Board discuss anything
18 about negotiations of a voluntary agreement
19 that may have occurred. So be mindful of
20 that.
21 MS. PECK: Right. So just to let
22 you know what this is, this is a white paper
Neal R. Gross and Co., Inc. 202-234-4433 Page 244 1 which is available on our website,
2 DCNightLifeNoise.com. And it basically is a
3 statement of the law. Okay, this is a white
4 paper.
5 MEMBER ALBERTI: Okay. So you
6 want to present that to the --
7 MS. PECK: I will. And I just
8 want to tell you now that I have some further
9 information that one the back, Tab D, is a
10 generic proposed settlement agreement that is
11 based on having seen other settlement
12 agreements that have been proven effective in
13 the community.
14 These kinds of things are normally
15 negotiated. So this is certainly not a list
16 of demands. This is a white paper stating the
17 law and --
18 MEMBER ALBERTI: Okay. All right,
19 so let me ask you about the second half of
20 that.
21 MS. PECK: Yes.
22 MEMBER ALBERTI: That standard
Neal R. Gross and Co., Inc. 202-234-4433 Page 245 1 voluntary agreement, whatever you want to call
2 it, was that presented to the licensee as part
3 of negotiations?
4 MS. PECK: It was presented as
5 part of the white paper that was handed over
6 to his attorney and to him in the meeting that
7 we had.
8 MEMBER ALBERTI: Was that to
9 discuss a voluntary agreement?
10 MS. PECK: Yes. We would have
11 liked --
12 MEMBER ALBERTI: Okay. So let's,
13 I don't know where going down with this road.
14 So since the second one was portrayed as the
15 settlement agreement, I'm not going to allow
16 that one to come into the record. What's the
17 first half of this now?
18 MS. PECK: Okay, well I am
19 responding to a very surprising turn of events
20 where I find myself being the person who has
21 been accused of doing something that there's
22 no relation to reality.
Neal R. Gross and Co., Inc. 202-234-4433 Page 246 1 So let me just formulate a
2 question and I will try to get myself back
3 into the mode of representative.
4 MEMBER ALBERTI: I will tell you
5 that this Board is expert at filtering.
6 MALE PARTICIPANT: I've been
7 accused of a lot of things.
8 MEMBER ALBERTI: Wait, wait,
9 please. This Board is expert at filtering
10 what we hear. So --
11 MS. PECK: Thank you. That's,
12 okay.
13 MEMBER ALBERTI: And if it's not
14 backed up by fact, it doesn't get considered.
15 So please continue.
16 MS. PECK: Okay. Well, let's see.
17 I'm sorry that you felt that way, and we would
18 appreciate the opportunity to talk to Ozio to
19 resolve this dispute. So certainly, I just
20 want to throw that out there.
21 I do have a few further questions
22 for you. One is we were at your establishment
Neal R. Gross and Co., Inc. 202-234-4433 Page 247 1 on Saturday, March 8th, 9th, which is when
2 this video was taken. And DJ's were operating
3 there at the time.
4 And I just had a few questions
5 about DJ's when they operate there. So this
6 DJ was not a house employee. This is somebody
7 that you contract with who comes in?
8 MR. CHRISTACOS: I don't know who
9 was working that night.
10 MS. PECK: Okay. Well there was a
11 DJ spinning music up there. And is it when
12 you have a contract DJ come in, do they bring
13 their own sound system, or how does that work?
14 MR. CHRISTACOS: No, they bring
15 their music and that's it.
16 MS. PECK: And they plug into
17 what's already there?
18 MR. CHRISTACOS: Yes, that's
19 correct.
20 MS. PECK: Okay. And why did you
21 call back your sound engineer to come back out
22 and conduct additional testing?
Neal R. Gross and Co., Inc. 202-234-4433 Page 248 1 MR. CHRISTACOS: Because I felt it
2 would be cheaper than going through the trial
3 process again or losing my license or having
4 to hire a lawyer to do all these things.
5 MS. PECK: You said that he
6 stopped the test because the patrons were
7 arriving. Did you plan to continue the test
8 to wrap that up?
9 MR. CHRISTACOS: If we feel like
10 we're getting violations, which I know that I
11 am not a violator, if we feel like we're
12 getting violations, then we feel then we'll
13 have to. We'll be forced to, I guess, yes.
14 But right now I know I'm not the cause of the
15 neighborhood's problems.
16 MS. PECK: So the sound engineer
17 testified that at 88 decibels with the roof
18 closed, it was basically 60 or so. In other
19 words, not much of the ambient sound in the
20 alley. So we know that.
21 We don't know what happens when
22 it's 88 and, well we do know what happens when
Neal R. Gross and Co., Inc. 202-234-4433 Page 249 1 it's set at 88 and the roof is open, it
2 measures 70 decibels down there, which is
3 about a ten decibel spread.
4 My question is what do you intend
5 to do about that? How will your business
6 practice be adjusted, if at all, to
7 accommodate that information?
8 MR. CHRISTACOS: Well, when those
9 readings were taken, we had adjusted the
10 levels to where everything was redlining. And
11 I don't know if you guys know what redlining
12 is, but it means that there's actually
13 distortion being caused -- in the music that
14 way.
15 And Mr. Henning took the reading
16 upstairs, went downstairs, got the reading of
17 88, and when we were still too high, we kept
18 bringing the levels down until we thought it
19 was pretty close to that 60, 63 with the
20 ambient music.
21 And that's with all the way up.
22 We locked the system. Mr. Henning never had
Neal R. Gross and Co., Inc. 202-234-4433 Page 250 1 a chance to come back up and take readings to
2 see what that decibel reading was.
3 But I feel now that it is low
4 enough. I mean, this weekend we could hear
5 the conversation of people over our music.
6 And it was all the way up.
7 MS. PECK: So are you going to
8 have him come back in, at least tell you what
9 that decibel reading is?
10 MR. CHRISTACOS: If I get fined,
11 yes. Or if I feel there is problem, yes.
12 MS. PECK: Okay. But for now, the
13 plan is to it's been locked into place, it's
14 been lowered below 88, and it cannot be --
15 MR. CHRISTACOS: That is my
16 understanding. Yes, we did get it below that
17 88 level, yes.
18 MS. PECK: Okay. And what is your
19 plan with respect to roof open, roof closed?
20 What will you do with that?
21 MR. CHRISTACOS: I was hoping just
22 to have the same sort of agreement that where,
Neal R. Gross and Co., Inc. 202-234-4433 Page 251 1 you know, if it came to be a problem, the
2 neighbors would let us know.
3 You know, I mean, it didn't seem
4 to be a problem for three years until now,
5 until other places started opening up and
6 people started protesting our license.
7 We would like to keep an open line
8 of communication and make sure that, you know,
9 if it is too loud with the roof open, we'll
10 have to do something where we'll keep the roof
11 closed which we try to do anyways during the
12 later parts.
13 You know, I can respect the
14 neighborhood. We usually wind up closing half
15 of the side which faces the townhouses. We're
16 trying, we're trying.
17 But without the communication, the
18 lack of communication, we've gotten I think
19 maybe three or four phone calls. I think
20 we've gotten maybe two or, you know, two or
21 three, three phone calls at the most for
22 complaints.
Neal R. Gross and Co., Inc. 202-234-4433 Page 252 1 And for us to be aware of that
2 we're a problem, it's really hard when in four
3 years you've only gotten not even a handful of
4 complaints.
5 MS. PECK: Okay. No further
6 questions.
7 MEMBER ALBERTI: Great, thanks.
8 Questions from the board? Any questions from
9 the Board? Are you going to --
10 MEMBER JONES: Oh, you want me to
11 go first?
12 MEMBER ALBERTI: Yes, go ahead.
13 MEMBER JONES: All right, that's
14 fine. I need to record this time.
15 MEMBER ALBERTI: And I'll see if I
16 have any follow up after that.
17 MEMBER JONES: All right. Sir, so
18 in terms of when the first time that you had
19 a sound engineer come back out after the 2010
20 test was this Friday?
21 MR. CHRISTACOS: Correct.
22 MEMBER JONES: Okay. So from 2010
Neal R. Gross and Co., Inc. 202-234-4433 Page 253 1 until this Friday, you were operating
2 potentially at a higher level than what was
3 established by the sound engineer based on his
4 assessment analysis done on this Friday?
5 MR. CHRISTACOS: We were operating
6 at that same level, which had been set at
7 2010.
8 MEMBER JONES: That doesn't
9 comport with I thought I heard you just say,
10 or what the sound engineer testified to. So
11 maybe I'm just misunderstanding. So there was
12 a level that was set in 2010?
13 MR. CHRISTACOS: Correct.
14 MEMBER JONES: Right. And you're
15 saying, were you set at that level when the
16 sound engineer came by and did his analysis?
17 MR. CHRISTACOS: The first time.
18 The second time?
19 MEMBER ALBERTI: I think he means
20 this past Friday.
21 MR. CHRISTACOS: This past Friday
22 were we set? Yes. That was --
Neal R. Gross and Co., Inc. 202-234-4433 Page 254 1 MEMBER JONES: So you were set
2 this past Friday and 2014 levels were exactly
3 the same ones as the 2010 levels?
4 MR. CHRISTACOS: Correct.
5 MEMBER JONES: Okay. So when you
6 were saying that you made efforts to turn it
7 down, why was that necessary if you were set
8 at the exact same levels?
9 MR. CHRISTACOS: Because the
10 levels were taken three feet away from the
11 building as opposed to 60 feet away from our
12 building where our voluntary agreement had
13 agreed with those numbers before.
14 The levels were being taken 60
15 feet away where they were okay and they were
16 allowed by the residents. But in 2014, the
17 levels would be taken three feet away from the
18 building, which now they're saying is the new
19 regulation. So the levels were higher.
20 MEMBER JONES: So that regulation
21 wasn't in place in 2010?
22 MR. CHRISTACOS: Yes the
Neal R. Gross and Co., Inc. 202-234-4433 Page 255 1 regulation was in place, but the regulation
2 where we had to measure was not in place. We
3 were measuring from the apartments. We were
4 not measuring from the bottom of the building.
5 MEMBER JONES: But was the
6 regulation in place?
7 MR. CHRISTACOS: The levels were
8 lower because we were standing at the bottom
9 of the building taking those measurements as
10 opposed to down the alley, 160 feet away.
11 MEMBER JONES: But you contracted
12 this individual, correct?
13 MR. CHRISTACOS: My attorney did.
14 MEMBER JONES: Well, somebody
15 under your guidance contracted this
16 individual?
17 MR. CHRISTACOS: No sir. It was
18 not under my guidance.
19 MEMBER JONES: Well how is it that
20 your attorney, he acted against your guidance,
21 or not in concert with your guidance.
22 MR. CHRISTACOS: No, I took his
Neal R. Gross and Co., Inc. 202-234-4433 Page 256 1 advice.
2 MEMBER JONES: Okay, so you took
3 his advice.
4 MR. CHRISTACOS: Correct.
5 MEMBER JONES: So you are aware of
6 and cognizant and participating in --
7 MR. CHRISTACOS: I don't
8 understand what and cognizant means.
9 MEMBER JONES: Were you aware of
10 the fact that a sound engineer was coming to
11 do a sound test at your location in 2014?
12 MR. CHRISTACOS: Yes sir, yes sir.
13 MEMBER JONES: Did you pay him?
14 MR. CHRISTACOS: Not yet.
15 MEMBER JONES: Is your intent to
16 pay him?
17 MR. CHRISTACOS: Yes it is.
18 MEMBER JONES: Okay. The
19 requirements by which this engineer, the
20 requirements by which this individual operated
21 under were requirements that you or someone
22 under your guidance and/or direction gave to
Neal R. Gross and Co., Inc. 202-234-4433 Page 257 1 this individual?
2 MR. CHRISTACOS: Michael said we
3 need a sound guy. And I said okay, what's he
4 going to do. It's not like I told him you're
5 going to do this, you're going to do that and
6 you're going to give me these results. If
7 that's what you're trying to get at, that's
8 not what I did. We used --
9 MEMBER JONES: Well so I'm just,
10 I'm confused --
11 MR. CHRISTACOS: -- the same
12 gentleman we used in 2010 that we got out of
13 the Yellow Pages or I don't know where Michael
14 got him from, but --
15 MEMBER JONES: So you used the
16 same guy, but you --
17 MR. CHRISTACOS: -- I did not give
18 him any guidelines. I did not --
19 MEMBER JONES: You used the same
20 guy, but you didn't use the same process. So
21 you're comparing apples and oranges.
22 MR. CHRISTACOS: The process was
Neal R. Gross and Co., Inc. 202-234-4433 Page 258 1 exactly the same.
2 MEMBER JONES: It doesn't sound
3 like it based on what you just said, because
4 you said you took measurements from 60 feet
5 away in 2010 and now you're taking
6 measurements from three feet away in 2014.
7 MR. CHRISTACOS: I guess that
8 would be a comparison of apples and oranges,
9 yes.
10 MEMBER JONES: Exactly. So what
11 was your objective in performing this study,
12 because you're relying on that heavily to say
13 that hey, we're not the problem because we had
14 a sound engineer that came in in 2014, and we
15 made adjustments based on what he told us in
16 2014.
17 But the adjustments he made
18 weren't apples to apples adjustments, they
19 were apples to oranges adjustments. So what
20 have you really done to make sure that you are
21 helping the situation that you claim that
22 you're trying to help.
Neal R. Gross and Co., Inc. 202-234-4433 Page 259 1 MR. CHRISTACOS: I have made the
2 fruit even sweeter, since we're talking about
3 fruit. I've made the fruit even sweeter by
4 saying three feet from our building you can
5 only hear 60 dB's, as opposed to 2010 it was
6 160 feet from my building you can hear 60, 63
7 dB's.
8 MEMBER JONES: Okay, but you have
9 no measures -- well what was that number set
10 at? I think did you indicate what you know
11 that number to be?
12 MR. CHRISTACOS: I don't remember.
13 MEMBER JONES: You don't know?
14 MR. CHRISTACOS: Two eighty eight?
15 What number are we talking about?
16 MEMBER JONES: We're talking about
17 the number that the sound engineer, the number
18 about which you made the fruit sweeter was
19 defined by --
20 MR. CHRISTACOS: Lower than 88.
21 MEMBER JONES: And how do you know
22 that?
Neal R. Gross and Co., Inc. 202-234-4433 Page 260 1 MR. CHRISTACOS: Because as we
2 were doing the testing, it was set at 88 and
3 then we brought it down lower. But Mr.
4 Henning was not able to go upstairs and
5 measure because we were open for business.
6 MEMBER JONES: So you don't know
7 what it was for sure?
8 MR. CHRISTACOS: Don't know what
9 it was for sure.
10 MEMBER JONES: Okay.
11 MR. CHRISTACOS: But I know it was
12 lower.
13 MEMBER JONES: Is it fixed at that
14 level now?
15 MR. CHRISTACOS: Yes it is.
16 MEMBER JONES: How?
17 MR. CHRISTACOS: Through a DBX
18 processor that I was talking about where the
19 gentleman has to come in with a piece of
20 software, plug his laptop into the back of the
21 processor and change the levels from there.
22 MEMBER JONES: Do you know how it
Neal R. Gross and Co., Inc. 202-234-4433 Page 261 1 works specifically?
2 MR. CHRISTACOS: I don't.
3 MEMBER JONES: Okay. So you just
4 know that in order for you to change the
5 levels up or down, the individual has to come
6 in with his laptop and change it. So you
7 don't know if it's a relative measure or is it
8 a cap? In other words, the guy comes in with
9 his laptop, does he have the ability --
10 MR. CHRISTACOS: I think he has
11 the ability to set it at a dB, if that's what
12 you're asking me.
13 MEMBER JONES: No, no, no. So
14 volume, typically the output from, a signal
15 output is going to be a relative measure,
16 right?
17 So if I had a laptop that's
18 producing a signal and it's sending that
19 signal to an amplification device, it's a
20 relative measure as to what input it's
21 receiving. And it's going to amplify based on
22 that relative measure.
Neal R. Gross and Co., Inc. 202-234-4433 Page 262 1 MR. CHRISTACOS: I'm not sure
2 exactly what you're talking about. The
3 adjustments were being done simultaneously
4 with the testing Mr. Henning was doing.
5 So it's not the source. The
6 source is not the laptop. The laptop is just
7 the tool used to adjust the levels. Like, you
8 can't go to a thing and turn it, it has to be
9 done, the processor has to be plugged into a
10 laptop and then --
11 MEMBER JONES: When you have DJ's
12 come to your establishment, do they ever have
13 output coming from a laptop? Or is it always
14 turntables?
15 MR. CHRISTACOS: It's not --
16 MEMBER JONES: Yes or no.
17 MR. CHRISTACOS: They have laptops
18 coming from an output.
19 MEMBER JONES: Okay. So there is
20 a possibility that you have a laptop that is
21 a source.
22 MR. CHRISTACOS: Of music?
Neal R. Gross and Co., Inc. 202-234-4433 Page 263 1 MEMBER JONES: Yes.
2 MR. CHRISTACOS: Yes.
3 MEMBER JONES: Okay. The relative
4 measure, right, the level that's coming out of
5 your laptop, there's a volume control that you
6 have on your laptop that adjusts the amplitude
7 of the signal that's coming out of your
8 laptop.
9 What I'm trying to figure out from
10 you is do you have knowledge of whether or not
11 your limiter limits based on a firm cap, or
12 does it limit it based on a relative measure.
13 MR. CHRISTACOS: A firm cap.
14 MEMBER JONES: Okay. And how do
15 you know that?
16 MR. CHRISTACOS: A firm cap
17 because the source is not the laptop.
18 MEMBER JONES: No, the source is
19 the laptop, you just said that.
20 MR. CHRISTACOS: Yes, the source
21 from the music may be a laptop. But the
22 laptop that the gentleman uses to adjust the
Neal R. Gross and Co., Inc. 202-234-4433 Page 264 1 equipment is not plugged into the DJ
2 equipment. It's been plugged into the back of
3 the processor. It has nothing to do with
4 where the music comes out of.
5 MEMBER JONES: So the guy with the
6 laptop that makes the adjustments, he's done.
7 You have a DJ that comes in with a laptop. He
8 plugs into your sound system.
9 The limit has been set. I'm just
10 trying to understand is it a cap, limit, hard
11 limit, or is it a relative limit?
12 MR. CHRISTACOS: It's a hard
13 limit. He can't go --
14 MEMBER JONES: How do you know
15 that? That's what I'm trying to figure out.
16 MR. CHRISTACOS: I mean, unless
17 the processor lies, I can't say what, because
18 that's what the job of the processor is
19 supposed to be doing.
20 MEMBER JONES: Okay. So does
21 anyone outside --
22 MR. CHRISTACOS: Processor,
Neal R. Gross and Co., Inc. 202-234-4433 Page 265 1 crossover, limiter, compressor, suppressor are
2 all in one. I don't know how they work, all
3 I know is that the function of it--
4 MEMBER JONES: Do you know what
5 they're supposed to do?
6 MR. CHRISTACOS: The function of
7 this machine, it's a $2,400 machine. Its
8 function is to process all your music and be
9 able to set it at a level where nobody can
10 adjust it.
11 No DJ's can go back, no managers
12 can go back, nobody can go back there and
13 adjust them.
14 MEMBER JONES: Okay, so no one
15 within your shop has the ability to turn up
16 the amplifier?
17 MR. CHRISTACOS: No.
18 MEMBER JONES: Okay. So the
19 amplifier is set at what level right now in
20 order to ensure --
21 MR. CHRISTACOS: All the way. All
22 the way max.
Neal R. Gross and Co., Inc. 202-234-4433 Page 266 1 MEMBER JONES: You have your
2 amplifier all the way up?
3 MR. CHRISTACOS: All the way max.
4 MEMBER JONES: Okay, that's fine.
5 MR. CHRISTACOS: But the sound is
6 limited through a suppressor.
7 MEMBER JONES: Okay.
8 MR. CHRISTACOS: The way music
9 works, you have an amplifier. An amplifier
10 runs through a crossover, goes into an EQ
11 through a processor. That's what supplies all
12 the music.
13 That's where all the music is
14 being distributed from. This is where the
15 music is being limited at. Where it doesn't
16 matter whether --
17 MEMBER JONES: Where's the this?
18 MR. CHRISTACOS: -- I turn my
19 limits all the way down or all the way up --
20 MEMBER JONES: Sir, when you say
21 this is where the music's being limited at,
22 what's the this? What's that component?
Neal R. Gross and Co., Inc. 202-234-4433 Page 267 1 MR. CHRISTACOS: What is the
2 component?
3 MEMBER JONES: Yes.
4 MR. CHRISTACOS: A DBX --
5 MEMBER JONES: No, what is it? Is
6 it an amplifier, is it a crossover, is it a
7 limiter?
8 MR. CHRISTACOS: It's all three in
9 one.
10 MEMBER JONES: Okay.
11 MR. CHRISTACOS: I can Google it
12 for you. Show you a picture of it.
13 MEMBER JONES: Well, got it. So
14 that's your method of measure process for
15 controlling the sound and the volume?
16 MR. CHRISTACOS: That's correct.
17 MEMBER JONES: So between 2010 and
18 2014, you're operating at levels higher than
19 that, then what it is currently set at,
20 correct?
21 MR. CHRISTACOS: Higher than what?
22 MEMBER JONES: Higher that what it
Neal R. Gross and Co., Inc. 202-234-4433 Page 268 1 is, well you tell me. You said it's set at
2 some level, what is that level?
3 (Crosstalk)
4 MEMBER JONES: You said your
5 amplifier's turned to what, your amplifier's
6 turned up to the max. Right, so there's
7 something else that's limiting it, right? You
8 said it's all one box, it's all one element.
9 So if it's all one element and the
10 amplifier's turned up to the max, there must
11 be some other element or component that you're
12 setting in order to bring that level down.
13 What is that level at?
14 MR. CHRISTACOS: I don't
15 understand.
16 MEMBER ALBERTI: May I interject?
17 MEMBER JONES: Yes.
18 MEMBER ALBERTI: I think if I
19 understand, and I don't know if this is
20 accurate, but I think what I understand Mr.
21 Christacos to be saying --
22 MR. CHRISTACOS: Chris tacos.
Neal R. Gross and Co., Inc. 202-234-4433 Page 269 1 MEMBER ALBERTI: Thank you.
2 MR. CHRISTACOS: Christacos.
3 MEMBER ALBERTI: I'm sorry. So
4 saying is that the limiter, the compressor,
5 all right, is programmed. But he doesn't know
6 what those program settings are. Is that what
7 you're saying?
8 MR. CHRISTACOS: That's correct.
9 Or how to program it.
10 MEMBER ALBERTI: Okay. Or how to
11 program it, right.
12 MEMBER JONES: But you know
13 they're lower than --
14 MR. CHRISTACOS: I know it's
15 either, you know --
16 MEMBER JONES: Are they lower --
17 MR. CHRISTACOS: -- below.
18 MEMBER JONES: Are they lower than
19 what they were in 2010?
20 MR. CHRISTACOS: Yes they are.
21 MEMBER JONES: So is it fair to
22 say that from 2010 to 2014, you were operating
Neal R. Gross and Co., Inc. 202-234-4433 Page 270 1 at levels higher than what you are currently
2 set at today?
3 MR. CHRISTACOS: I think that's
4 what the charts show, yes.
5 MEMBER JONES: When you say you
6 think that's what the charts show --
7 MR. CHRISTACOS: All the evidence
8 admitted by the sound engineer shows that
9 evidence.
10 MEMBER JONES: The only evidence
11 that I know of, that I have is Exhibit 1. Is
12 there an exhibit that you submitted a report
13 for the 2014 analysis?
14 MR. FONSECA: Just his verbal
15 today.
16 MEMBER JONES: Okay, so just his
17 testimony.
18 MR. FONSECA: Just the testimony,
19 not --
20 (Crosstalk)
21 MEMBER JONES: Okay.
22 MR. CHRISTACOS: -- trying to say
Neal R. Gross and Co., Inc. 202-234-4433 Page 271 1 --
2 MR. FONSECA: I'm just going to
3 hand the witness Exhibit 1 so he has it there.
4 MEMBER JONES: And did you feel
5 like you were within, you said you had no
6 complaints over the three years roughly from
7 2010 to 2014?
8 MR. CHRISTACOS: I wouldn't say no
9 complaints. I said we had less than a handful
10 of complaints.
11 MEMBER JONES: Less than a handful
12 complaints from 2010 to 2014?
13 MR. CHRISTACOS: Correct.
14 MEMBER JONES: So what was the
15 overriding driver for you to make that change
16 to bring it down more if you felt like you
17 were compliant?
18 MR. CHRISTACOS: This trial.
19 MEMBER JONES: Just because we
20 covered this here today?
21 MR. CHRISTACOS: Yes.
22 MEMBER JONES: Okay, so the only
Neal R. Gross and Co., Inc. 202-234-4433 Page 272 1 reason you're making this change that you're
2 making right now is based on trying to sweeten
3 the pot for the protestants?
4 MR. CHRISTACOS: I'm trying to
5 cooperate with the neighborhood. I mean,
6 we're trying to get along.
7 It's not like some other people
8 were saying where we were completely not, you
9 know, like I said, in the beginning of the
10 meetings, I was a great neighbor, people were
11 more than willing to work with me.
12 And then when I wasn't agreeing to
13 sign an agreement without, you know, having my
14 rights being heard first, you know, then
15 things went sour.
16 And we decided that, you know, no
17 business likes to spend four days out of their
18 business time to come to trials and mediation
19 and things like that. We've all got better
20 things to be doing, especially when you got a
21 business to run.
22 And now my expenses go up more,
Neal R. Gross and Co., Inc. 202-234-4433 Page 273 1 you know, because I got to pay an attorney.
2 I got to pay a sound guy. See, these aren't
3 things I want to do. These are things I'm
4 voluntary doing like my first voluntary
5 agreement.
6 I didn't have to sign a voluntary
7 agreement. I could have gone to trial. I
8 could have gone to my hearing and I would have
9 probably gotten away without having a
10 voluntary agreement because the mediator told
11 me that because Ozio in 19 years has not had
12 any complaints from neighbors or anyone or
13 anything. And we've been in this neighborhood
14 for 14 years.
15 MEMBER JONES: So you had
16 complaints from 2010 to 2014 related to sound,
17 you said roughly about five? Give or take?
18 MR. CHRISTACOS: Less than five.
19 MEMBER JONES: Are those
20 documented?
21 MR. CHRISTACOS: Yes.
22 MEMBER JONES: Okay. What were
Neal R. Gross and Co., Inc. 202-234-4433 Page 274 1 the nature of those complaints? Were they
2 sound related?
3 MR. CHRISTACOS: Sound related.
4 MEMBER JONES: Okay. And what
5 steps did you take to mitigate those concerns?
6 MR. CHRISTACOS: I sent my manager
7 over to the complainant's apartment to go find
8 out if it really was our music. And --
9 MEMBER JONES: What was the
10 outcome of those?
11 MR. CHRISTACOS: The outcome was
12 they found it was coming from somewhere else.
13 And that's been our statement all along that
14 it's not us. It's coming from other sources.
15 MEMBER JONES: Okay, and do you
16 have a process for verification?
17 MR. CHRISTACOS: I can show you a
18 video of my own if you let me submit it?
19 MEMBER JONES: Well just to be
20 clear, I'm not preventing you from submitting
21 anything --
22 MR. CHRISTACOS: Yes, yes. When I
Neal R. Gross and Co., Inc. 202-234-4433 Page 275 1 can hear my own music inside my restaurant and
2 I can walk outside my establishment and I hear
3 my neighbor's music? Yes.
4 MEMBER JONES: No, no, no. I'm
5 talking about --
6 (Crosstalk)
7 MR. CHRISTACOS: -- I have ways.
8 I just listen to it.
9 MEMBER JONES: The sound
10 complaints.
11 MR. CHRISTACOS: The sound
12 complaints?
13 MEMBER JONES: Yes. When you had
14 issues related to sound where the community
15 was complaining, you're saying that the
16 process you used was you sent your manager out
17 to verify at that individual's location to
18 confirm --
19 MR. CHRISTACOS: Correct.
20 MEMBER JONES: -- that the sound
21 was not coming from your establishment. And
22 you did that.
Neal R. Gross and Co., Inc. 202-234-4433 Page 276 1 MR. CHRISTACOS: Correct.
2 MEMBER JONES: I'm asking how did
3 you confirm, what was your verification? Did
4 you get corroboration of that from the actual
5 complainant?
6 MR. CHRISTACOS: Yes.
7 MEMBER JONES: You did, okay.
8 MR. CHRISTACOS: Not me, myself
9 personally. But my manager did.
10 MEMBER JONES: Okay, so the
11 manager reported --
12 MR. CHRISTACOS: And ABRA was
13 called one time as well, too, I believe where
14 a manager actually walked outside with the
15 ABRA Investigator and noticed that it was
16 coming from a different location.
17 MEMBER JONES: Okay, thank you.
18 Thank you, Mr. Chair.
19 MEMBER ALBERTI: Thank you, Mr.
20 Jones. Mr. Christacos, I just want to follow
21 up, please. So Mr. Jones talked about a DJ
22 coming up, plugging in his laptop, all right.
Neal R. Gross and Co., Inc. 202-234-4433 Page 277 1 So I'm trying to understand this.
2 So my question is can that DJ alter the level
3 of the sound by controlling the volume control
4 on his laptop?
5 MR. CHRISTACOS: Not past where we
6 have it set at. He could lower it, but he
7 cannot go above the level we set.
8 MEMBER ALBERTI: That's
9 intriguing. So how do you know when he plugs
10 it in, it's not at its lowest level?
11 MR. CHRISTACOS: I don't
12 understand. He can go up to a certain level
13 that we have set.
14 MEMBER ALBERTI: You know, I know.
15 But I'm no electronic engineer, but I know
16 enough to know that if you plug in different
17 laptops, you're going to get different
18 results. So how do you control that?
19 I mean, how do you know that you
20 haven't exceed some sound level that you're
21 relying on because somebody comes in with a
22 laptop that produces --
Neal R. Gross and Co., Inc. 202-234-4433 Page 278 1 MR. CHRISTACOS: I guess that's up
2 for --
3 MEMBER ALBERTI: -- more power.
4 MR. CHRISTACOS: -- the City to
5 decide, isn't it?
6 MEMBER ALBERTI: Pardon?
7 MR. CHRISTACOS: I guess that's up
8 for the City and the task force to decide
9 whether I'm, you know, abiding by the law or
10 --
11 (Crosstalk)
12 MEMBER ALBERTI: Okay, I'll take
13 that as your answer. But okay, so now let's
14 go back to the test. What was the sound
15 source for the test?
16 MR. CHRISTACOS: It was a CD
17 player.
18 MEMBER ALBERTI: A CD player, not
19 a -- okay. And what was the level of the
20 sound set on that CD player?
21 MR. CHRISTACOS: Maxed out all the
22 way.
Neal R. Gross and Co., Inc. 202-234-4433 Page 279 1 MEMBER ALBERTI: Okay.
2 MR. CHRISTACOS: Mids were all the
3 way up, the highs were all the way up, the
4 bass was all the way up. Everything was
5 redlining, everything was distorted.
6 MEMBER ALBERTI: On what?
7 MR. CHRISTACOS: On the mixer.
8 MEMBER ALBERTI: On the mixer,
9 okay. And the source was pumping out as much
10 power as it could? The CD player?
11 MR. CHRISTACOS: Yes.
12 MEMBER ALBERTI: Some CD players
13 have a volume control, some don't. I mean,
14 some it's not active when you're outputting,
15 some is. But this one --
16 MR. CHRISTACOS: Yes, our test was
17 done to make sure that we are complying.
18 We're not trying to finagle --
19 MEMBER ALBERTI: I understand
20 that.
21 MR. CHRISTACOS: -- or sneak
22 something.
Neal R. Gross and Co., Inc. 202-234-4433 Page 280 1 MEMBER ALBERTI: I understand
2 that, but we're just trying to understand how
3 you know. Look, we're just trying to
4 understand how you know that in the future --
5 MR. CHRISTACOS: I know by taking
6 --
7 MEMBER ALBERTI: -- in the future
8 there isn't some, you know, that the sound is
9 -- we want to understand how you can be so
10 confident that the sound is being controlled.
11 And I'm not getting that, to be
12 honest with you. So that's my question. All
13 right. Do you know the model of the
14 compressor? The --
15 MR. CHRISTACOS: A DBX 9.
16 MEMBER ALBERTI: DBX 9?
17 MR. CHRISTACOS: I believe so.
18 MEMBER ALBERTI: Okay. Thank you.
19 Oh, one last question. So your technician
20 comes in, sets it on his computer and
21 everything, okay. Do you get any information
22 back from him on how he set this?
Neal R. Gross and Co., Inc. 202-234-4433 Page 281 1 MR. CHRISTACOS: As far as? He
2 says okay cool, I got it set.
3 MEMBER ALBERTI: And that's it?
4 MR. CHRISTACOS: And that's it.
5 MEMBER ALBERTI: So you don't get
6 any documentation, there's nothing there?
7 MR. CHRISTACOS: I mean, is it --
8 (Crosstalk)
9 MEMBER ALBERTI: If he has to come
10 back in next year for some reason, back in six
11 months --
12 MR. CHRISTACOS: No, we don't get
13 documentation or anything.
14 MEMBER ALBERTI: If he has to come
15 back in six --
16 MR. CHRISTACOS: I just get a bill
17 for it, that's it.
18 MEMBER ALBERTI: All right, so he
19 comes back in six months and fiddles with it,
20 all right, how are you going to tell that it
21 is the same levels as you currently have?
22 MR. CHRISTACOS: Well, I mean, I
Neal R. Gross and Co., Inc. 202-234-4433 Page 282 1 guess --
2 MEMBER ALBERTI: Would you hire
3 another sound engineer?
4 MR. CHRISTACOS: -- that's kind of
5 speculating now, isn't it? I mean --
6 MEMBER ALBERTI: Well would you
7 hire another --
8 MR. CHRISTACOS: I might not even
9 have the same guy come back or --
10 MEMBER ALBERTI: Great, so you
11 don't have the same guy back. So the new guy
12 comes in and fiddles with it. Do you hire a
13 new sound engineer to measure the sound level?
14 What do you do?
15 MR. CHRISTACOS: That's a good
16 question. I mean, I'll wait for my next
17 protest hearing. I don't know.
18 MEMBER ALBERTI: Okay, it's an
19 honest answer. It's an honest answer.
20 MR. CHRISTACOS: I don't know, I
21 mean --
22 MEMBER ALBERTI: All right, but
Neal R. Gross and Co., Inc. 202-234-4433 Page 283 1 that's the problem I'm having. So all right.
2 MR. CHRISTACOS: The thing is we
3 have it set. There's no way anybody can go in
4 and change the levels on it unless a freak act
5 of something comes in where, you know,
6 somebody breaks into my restaurant under
7 unbeknownst to me and plugs their computer in,
8 happens to find where all my stereo equipment
9 is and goes and changes. I mean, there's
10 always possibilities yes.
11 MEMBER ALBERTI: Okay, all right,
12 thank you. Mr. Rodriguez?
13 MEMBER RODRIGUEZ: Mr. Christacos,
14 thank you. I'm interested in the human
15 relations part of this because, you know,
16 technology probably is beyond me.
17 But before the technology came the
18 people. And I'm interested in the kind of
19 relationships that we establish here because
20 we're not exactly, you know, an urban enclave
21 like people want.
22 We try to create, I guess, a
Neal R. Gross and Co., Inc. 202-234-4433 Page 284 1 suburban oasis of some kind. But we do have
2 to share this urban marketplace and place
3 where people live, do business, job creation.
4 So I'm interested in the human
5 component of this. And I get a sense about
6 you that you really take great pride in your
7 relationships with the community being a
8 corporate citizen. So how long has Ozio been
9 in business?
10 MR. CHRISTACOS: We've been in
11 business since December 1995.
12 MEMBER RODRIGUEZ: 1995. And how
13 long have you been in a leadership position
14 with Ozio's?
15 MR. CHRISTACOS: Since the very
16 beginning.
17 MEMBER RODRIGUEZ: Since the
18 beginning. So what kind of relationships have
19 you established with your neighborhood, your
20 community?
21 MR. CHRISTACOS: I think a pretty
22 good relationship. As far as I know, I mean,
Neal R. Gross and Co., Inc. 202-234-4433 Page 285 1 I think we've established a good relationship.
2 Talking with all my neighbors, from what I
3 know people speak highly of me.
4 MEMBER RODRIGUEZ: So I gather
5 that it kind of upset you that people may
6 think that you're not a good citizen in the
7 community?
8 MR. CHRISTACOS: What upsets me is
9 when people know that I am being a good
10 citizen and I'm grouped into this group just
11 because I have a rooftop or because I'm part
12 of a group or I've been made part of a group
13 when I shouldn't be part of that group.
14 MEMBER RODRIGUEZ: So I get a
15 sense that you're the kind of person that is
16 willing to work out solutions to the human
17 challenges that we have.
18 MR. CHRISTACOS: Reasonable
19 solutions, correct sir.
20 MEMBER RODRIGUEZ: Okay. So I
21 just have one last question. Do you think
22 there's an opportunity to work out something
Neal R. Gross and Co., Inc. 202-234-4433 Page 286 1 with your protestors?
2 MR. CHRISTACOS: I believe there's
3 more than a great possibility to work
4 something out with protestors.
5 MEMBER RODRIGUEZ: I have no more
6 questions, thank you.
7 MEMBER ALBERTI: Mr. Short?
8 MEMBER SHORT: Yes, Mr.
9 Christacos. I would just like to, I heard
10 testimony from your manager about live bands.
11 MR. CHRISTACOS: Yes, sir.
12 MEMBER SHORT: So there'll be no
13 more in your establishment, is that what I
14 heard him say today?
15 MR. CHRISTACOS: We haven't
16 decided on that. But we know we won't be
17 doing them on the rooftop anymore.
18 MEMBER SHORT: So if you were to
19 come back before this board and that were to
20 happen, after hearing your testimony and your
21 manager's testimony, then you know you would
22 have broke your trust with this Board, is that
Neal R. Gross and Co., Inc. 202-234-4433 Page 287 1 correct?
2 MR. CHRISTACOS: We haven't
3 discussed procedures yet. I guess those will
4 be discussed following the hearing and the
5 results of the hearings. And then hard rules
6 and regulations will be written.
7 MEMBER SHORT: Okay, so he said,
8 because your manager's testimony was there'll
9 be no more bands, and you're saying that
10 that's not true.
11 MR. CHRISTACOS: I'm saying there
12 will be no more bands on the rooftop.
13 MEMBER SHORT: Okay, thank you.
14 That's all I wanted.
15 MEMBER ALBERTI: Mr. Jones?
16 MEMBER JONES: Just a quick follow
17 up. So do you plan on having policies and
18 procedures in place to ensure that when you
19 have your technician that comes out to fiddle
20 with the sound system to ensure that he
21 doesn't, or they or her or them, whatever the
22 case may be, do not increase it or change the
Neal R. Gross and Co., Inc. 202-234-4433 Page 288 1 limit threshold anywhere above where it is
2 right now.
3 And if so, what are those
4 procedures. And if you don't have them, do
5 you plan on documenting them? Compound
6 question, but I just want you to jump in.
7 MR. CHRISTACOS: I can explain
8 that we don't have the procedures because we
9 don't know what the outcome is going to be.
10 We haven't really had to have procedures other
11 than what the voluntary agreement states was
12 that if we have a problem, we deal with it, we
13 write it down and then we come back to it.
14 MEMBER JONES: So this question
15 actually --
16 MR. CHRISTACOS: Now it's gotten a
17 little bit trickier and we know that not
18 everybody is as friendly as I am. Yes, we
19 have to make the rules very strict.
20 MEMBER JONES: So just to make
21 sure it's clear, this has nothing to do with
22 the people aspect of it. This is strictly
Neal R. Gross and Co., Inc. 202-234-4433 Page 289 1 related to your employees, your staff, and
2 others that are completely within your
3 control.
4 Right, so you said you went
5 through great pains to pay an engineer and to
6 pay someone to come out and a technician come
7 out and set the threshold on your limiter to
8 some value that you don't know what it is.
9 My question to you is to ensure
10 that the situation that Mr. Alberti, Board
11 Member Alberti pointed to doesn't come to
12 fruition, do you have in place currently
13 policies and procedures to prevent a
14 technician from coming in and changing that
15 threshold to something higher than what you
16 want it to be, and/or if you don't, is that
17 something that you would consider doing?
18 MR. CHRISTACOS: I mean, keys to
19 the door I think would be policy enough. I
20 mean, there's no way a technician could get in
21 there without me opening up for him.
22 MEMBER JONES: The challenge I
Neal R. Gross and Co., Inc. 202-234-4433 Page 290 1 have with that is you have no clue what he's
2 doing, right? You said it yourself. You
3 don't really understand what he's doing.
4 MR. CHRISTACOS: Somebody is
5 inside my restaurant and I don't know what
6 they're doing. I can't say that something can
7 never happen.
8 MEMBER ALBERTI: Excuse me. Piece
9 of equipment breaks. Electronics burn out.
10 Continue, Mr. Jones. Just trying to be
11 helpful here.
12 MEMBER JONES: I take it that
13 you're not understanding what it is that I'm
14 asking because I think the --
15 MR. CHRISTACOS: Probably not.
16 MEMBER JONES: -- question is
17 probably far simple, I was hopeful that the
18 answer would be far simpler than what it is
19 than I'm getting from you.
20 You have a technician that comes
21 in, you're not completely cognizant and aware
22 of how he does what he does. You're just hey,
Neal R. Gross and Co., Inc. 202-234-4433 Page 291 1 it's broken. I need you to fix it.
2 You pay somebody to come to fix
3 it. In the process of them fixing it, there's
4 nothing that you know of exactly that's going
5 to keep them from setting that threshold a
6 little bit higher than what it was before
7 because in the process of troubleshooting and
8 diagnosing a problem, they may have to tune
9 something.
10 MR. CHRISTACOS: I'm not technical
11 enough to be able to do that, no.
12 MEMBER JONES: Exactly. So my
13 question is do you plan on, if you don't,
14 which you sound like you don't, would you be
15 amenable to establishing guidelines, training,
16 processes and procedures to ensure that that
17 doesn't happen, to the best of your ability.
18 At least have guidelines to follow
19 to help say yes, let's ask the write question.
20 It could be something as simple as hey, before
21 this guy leaves, can you confirm that you
22 haven't changed the thresholds?
Neal R. Gross and Co., Inc. 202-234-4433 Page 292 1 MR. CHRISTACOS: I would --
2 MEMBER JONES: Okay, that's
3 something you would be willing to do?
4 MR. CHRISTACOS: Yes.
5 MEMBER JONES: Thank you.
6 MEMBER ALBERTI: Okay, any other
7 Board questions? Okay. I can't remember
8 whose witness he is. Mr. Fonseca, redirect.
9 MR. FONSECA: I don't know that I
10 want to reopen anything at this point. Just
11 to nail one thing down, the Noise Control Act
12 has always been in place. The 60 dBa's was a
13 rule, you understood that all along, correct?
14 MR. CHRISTACOS: Correct.
15 MR. FONSECA: It's never been
16 enforced against you, is that correct?
17 MR. CHRISTACOS: As far as I know.
18 MR. FONSECA: You've never gotten
19 a ticket about it, you never seen --
20 MR. CHRISTACOS: Oh yes, I mean --
21 MR. FONSECA: -- the DCRA or ABC
22 enforcement person --
Neal R. Gross and Co., Inc. 202-234-4433 Page 293 1 MR. CHRISTACOS: -- we have never
2 received any penalties or anything like that.
3 MR. FONSECA: Is any part of why
4 we brought in a sound consultant on Friday to
5 deal with that issue?
6 MR. CHRISTACOS: Yes. Yes.
7 MR. FONSECA: Is it to make sure
8 you're compliant with the Noise Control Act
9 and how that reading would be?
10 MR. CHRISTACOS: Yes.
11 MR. FONSECA: Okay, thank you.
12 MEMBER ALBERTI: Ms. Peck,
13 recross?
14 MS. PECK: Sure.
15 MEMBER ALBERTI: But limit it to
16 questions that have been asked.
17 MS. PECK: Just following up on
18 the line of questioning about the settings, I
19 thought it was a very interesting point that
20 equipment can break, people can be different
21 and so on.
22 I think I'm wondering whether you
Neal R. Gross and Co., Inc. 202-234-4433 Page 294 1 would consider adding to your list of rules
2 and regulations that you might be asked to
3 draft just that the settings, what they are so
4 that they're objective, they're known, they're
5 part of the company's, you know, way of doing
6 business and possibly even picking up a noise
7 meter from the local place where you get them.
8 OSHA says they can be picked up
9 for $300 so that you even know what the
10 settings are yourself so that you don't have
11 to bring in a sound engineer to check for
12 yourself. So just wondered whether that might
13 be something that you would consider.
14 MR. CHRISTACOS: Yes, it's
15 definitely something I could consider. Even
16 bringing Mr. Henning back. Sure, anything.
17 I mean, whatever it takes so that we're not
18 the bad guy. I don't want to be a bad guy.
19 And I don't think I'm a bad guy.
20 MS. PECK: Thank you. No further
21 questions.
22 MEMBER ALBERTI: Thank you. Thank
Neal R. Gross and Co., Inc. 202-234-4433 Page 295 1 you, Mr. Christacos.
2 MR. CHRISTACOS: Thank you, sir.
3 MEMBER ALBERTI: Mr. Fonseca? Mr.
4 Fonseca, are you --
5 MR. FONSECA: No, as I said, our
6 case --
7 MEMBER ALBERTI: Oh, I didn't hear
8 you, are you resting?
9 MR. FONSECA: We've completed our
10 case.
11 MEMBER ALBERTI: All right. Ms.
12 Peck, it's all yours.
13 MS. PECK: Okay. I would like to
14 first call Anne Kappel.
15 MEMBER ALBERTI: Sure. Ms.
16 Kapella?
17 MS. KAPPEL: Kappel, K-A-P-P-E-L.
18 MEMBER ALBERTI: Would you please
19 raise your right hand? Do you solemnly affirm
20 the testimony you're about to give will be the
21 truth, the whole truth, and nothing but the
22 truth?
Neal R. Gross and Co., Inc. 202-234-4433 Page 296 1 MS. KAPPEL: I do.
2 MEMBER ALBERTI: Thank you, please
3 be seated.
4 MS. KAPPEL: And forgive me, I
5 have a cold.
6 MEMBER ALBERTI: Okay. Well if
7 you could just make sure you talk into the mic
8 and that would be helpful.
9 MS. KAPPEL: Until yesterday, I
10 had no voice, until this morning.
11 MS. PECK: Before we get started,
12 I have a question about the letter that Anne
13 Kappel submitted. She submitted this on her
14 own to the Board, and it was sent, I believe,
15 copies to Arthur Jenkins and to opposing
16 counsel.
17 Should I submit that as evidence
18 in our case? Is this something that the
19 board has? I'm not sure how --
20 MEMBER ALBERTI: Probably best if
21 you submit it as your own exhibit.
22 MS. PECK: Okay, and then the
Neal R. Gross and Co., Inc. 202-234-4433 Page 297 1 second point, you know, flagging the issue
2 I've never done this before. We have all of
3 our exhibits in packets for you.
4 MEMBER ALBERTI: Okay.
5 MS. PECK: I spoke to Martha
6 Jenkins beforehand. She said I could enter
7 and authenticate them with each witness and
8 then hand them all over at the end to you,
9 taking out anything that wasn't accepted.
10 MEMBER ALBERTI: Perfect.
11 MS. PECK: Is that okay?
12 MEMBER ALBERTI: Perfect.
13 MS. PECK: Okay. Would you like a
14 copy --
15 MEMBER ALBERTI: So let me ask one
16 question. Have you given a packet to Mr.
17 Fonseca?
18 MR. FONSECA: I believe if this is
19 the final, the packet, and this should be the
20 final packet, correct?
21 MS. PECK: Yes.
22 MEMBER ALBERTI: Okay, very good.
Neal R. Gross and Co., Inc. 202-234-4433 Page 298 1 Just wanted to make sure --
2 MR. FONSECA: If I could, one
3 moment. I want to see H, which we now have
4 two pages, if that's correct. We have, and
5 the old one. I would have them and then I can
6 deal with any objections as we --
7 MEMBER ALBERTI: Great, very good.
8 Okay. So proceed.
9 MS. PECK: All right. Do you need
10 a copy of your letter?
11 MS. KAPPEL: No, I have it.
12 MS. PECK: You have a copy of the
13 letter.
14 MEMBER ALBERTI: Would you start
15 by having the witness introduce herself and
16 spell her name?
17 MS. PECK: Okay, would you please
18 introduce yourself and spell your name?
19 MS. KAPPEL: Anne, A-N-N-E,
20 Kappel, K-A-P-P-E-L. I am a resident at the
21 Jefferson Row Condominium in the
22 aforementioned Unit 20.
Neal R. Gross and Co., Inc. 202-234-4433 Page 299 1 And I am the Vice President of the
2 Condominium Association, and then ultimately
3 became the representative of the Association
4 in its negotiation with Ozio, and then a
5 signatory to the current voluntary agreement.
6 MEMBER ALBERTI: Thank you.
7 MS. PECK: Ms. Kappel, you wrote a
8 letter that you submitted to the Board, is
9 that correct?
10 MS. KAPPEL: Yes.
11 MS. PECK: Do you have a copy of
12 it there?
13 MS. KAPPEL: I do.
14 MS. PECK: Is that the letter that
15 you wrote?
16 MS. KAPPEL: Yes, it's the letter
17 that was submitted on March 12th, 2014 with
18 some comments and some history related to this
19 particular application.
20 MS. PECK: Mr. Fonseca, you have a
21 copy of this letter?
22 MR. FONSECA: I do.
Neal R. Gross and Co., Inc. 202-234-4433 Page 300 1 MS. PECK: Okay.
2 MEMBER ALBERTI: So do you want to
3 handle objections now, or do we want to do
4 them all at the end?
5 MR. FONSECA: I think I'll
6 probably do them as they come along.
7 MEMBER ALBERTI: I agree.
8 MR. FONSECA: I think my position
9 as counsel was I always observe my right to
10 object to any exhibit. And I would object to
11 any document that I couldn't cross examine.
12 So since she's here, I don't know
13 that the letter is necessary. But I don't
14 have a problem if she's going to summarize the
15 letter.
16 MEMBER ALBERTI: I'll leave it up
17 to Ms. Peck. But it is an Exhibit, you have
18 it. You can cross examine on it.
19 MR. FONSECA: Yes.
20 MEMBER ALBERTI: So I assume --
21 MR. FONSECA: We just have to
22 figure out what you're going to do about your
Neal R. Gross and Co., Inc. 202-234-4433 Page 301 1 numbering.
2 MS. PECK: Right, so this would be
3 --
4 MEMBER ALBERTI: Is there any
5 objection? There's no objection?
6 MS. PECK: This will be the
7 challenge, yes.
8 MR. FONSECA: There is no
9 objection to the letter. I do have a copy.
10 MEMBER ALBERTI: Okay, all right.
11 Very good.
12 MS. PECK: Okay, so at the end of
13 this hearing then I will --
14 MEMBER ALBERTI: We'll enter all
15 of those, right.
16 MS. PECK: -- this will be
17 submitted as part of the --
18 (Crosstalk)
19 MEMBER ALBERTI: Correct. Right,
20 and so we'll accept that --
21 MS. PECK: Ms. Kappel, could you
22 please tell us about the settlement agreement
Neal R. Gross and Co., Inc. 202-234-4433 Page 302 1 process that's been described in some detail
2 earlier today?
3 MS. KAPPEL: Well, briefly. And
4 some of this I discuss a little bit in the
5 letter. The condominium, it was a new
6 construction, it became occupied in 2007, for
7 the most part almost completely.
8 I think it was in 2009 we noticed
9 construction going on at Ozio. And a lot of
10 the people in the building had not lived in
11 the city before, so we were very unfamiliar
12 with the process.
13 We were concerned about it,
14 eventually discovered that they were doing
15 something on the rooftop. But looked like
16 they had proper permitting and so forth, made
17 some contact with the ANC and were advised
18 that before they could operate that space as
19 a bar or a lounge, they would have to apply
20 for a substantial change through the license,
21 which would be our first opportunity to
22 register any concerns through something called
Neal R. Gross and Co., Inc. 202-234-4433 Page 303 1 the protest process.
2 And so eventually in 2010, that
3 happened. They applied for the substantial
4 change, and we filed a protest. I actually
5 met with the Chairman and the Vice Chairman of
6 the ANC to understand how all that worked.
7 And the residents were very
8 concerned from two perspectives. Well three,
9 actually. You know, one, the potential noise
10 that it would create just having that there.
11 Two, that it seemed almost
12 impossible for them to operate it without
13 making that much noise. So it just seemed
14 sort of counterintuitive that they would do
15 this.
16 But then three, also what
17 precedent it might set and whether we would
18 have other establishments that might do the
19 same. This area, the entire block of
20 Jefferson, it's a one block street, those are
21 historic properties, so they're all four
22 stories and stop.
Neal R. Gross and Co., Inc. 202-234-4433 Page 304 1 Same is true with that block of M
2 Street, they're all the same level. There was
3 some confusion about that earlier. And I
4 believe, I don't know if they're historic but
5 it's the same level from Jefferson on 18th
6 down to the office building.
7 So clearly if one does it, and
8 they're all bars and restaurants surrounding,
9 you know, others may want to do that. And we
10 have seen an uptick in that activity since
11 they opened.
12 So we entered into the agreement.
13 This was all very new for us. We really
14 didn't, at the time we entered in, we started
15 into the first meeting which I went to, and
16 Kevin O'Connor was there.
17 We didn't have counsel at that
18 point, and really were kind of confused about
19 the whole thing. Our whole premise was people
20 just need to sleep at night. I mean, we don't
21 really care what you do, we just want to be
22 able to sleep at night.
Neal R. Gross and Co., Inc. 202-234-4433 Page 305 1 We were pressured a lot to kind of
2 get through this thing quickly because at that
3 time they were saying they wanted to open,
4 say, by New Year's Eve or something. So this
5 was, like, October.
6 And they wanted to have some sort
7 of winter opening, and so we had to kind of
8 hurry up and get this thing concluded. And so
9 I think all I kept saying throughout those
10 discussions was I don't really know what
11 conditions to put in here because the thing is
12 not, like, it's not done.
13 We don't know how you're going to
14 operate, and for me it was very stressful.
15 But they eventually agreed, and I think
16 actually they suggested that we do this sound
17 test and that a sound engineer could come out
18 and sort of set levels, which all sounded
19 great to us.
20 And you know, they paid for them.
21 So we did do those sound tests and I was
22 present for those tests. And then we read the
Neal R. Gross and Co., Inc. 202-234-4433 Page 306 1 report.
2 And maybe we didn't have the
3 expertise, but as we read the report, there
4 was nothing in there that was definitive
5 enough to say we'll put this in the agreement,
6 like, keep your sound at X and there will be
7 no problem, which is what we said.
8 We were like, well we don't know
9 how to interpret this. They concurred. So we
10 had another sound test, which in the previous
11 test it seemed it had gotten a little mixed
12 up.
13 That was more of the human
14 experience test. So we had Steven Christacos
15 and one of my neighbors were in their
16 facility. George Christacos, his father, was
17 with me in our place.
18 We went through three different
19 apartments that are on the eastern end, which
20 is the most exposed to their noise. And
21 played with the sound.
22 And the idea was if they would get
Neal R. Gross and Co., Inc. 202-234-4433 Page 307 1 an understanding of what the right levels
2 should be if they're bothering people in the
3 apartment. And George was on the phone
4 calling, and so on and so forth.
5 So ultimately, that's why we ended
6 up with this sort of idea that we would have
7 a test period. That okay, we did these
8 gauges, we have an idea.
9 Now they're going to operate.
10 Let's see how it goes and then we'll get a
11 final agreement. But of course, we thought
12 they were going to be operating in January and
13 the test period was going to end in June.
14 Well, they didn't start until May.
15 And then in May there were a number of
16 complaints. And unfortunately, in the early
17 probably from May to September, I would say in
18 2011 there was definitely more than a handful
19 of complaints.
20 Unfortunately, a lot of those
21 residents were sending me messages because I
22 was the person that was negotiating on behalf.
Neal R. Gross and Co., Inc. 202-234-4433 Page 308 1 So I had a lot of record.
2 I had email exchange by, I think,
3 at least when I'm with Steven in September
4 after the Valentines logged what they sent to
5 me was, like, a series of ten days of
6 problems.
7 And I have to say that, you know,
8 nobody's ever questioned Steven's earnestness
9 or desire to actually comply. And I can't
10 tell you what the problems are.
11 You know, but I can tell you that
12 where my unit is, which is on the, so the
13 front of the unit is the rooftop terrace where
14 the sound engineer was.
15 That is open space, probably for
16 about 40 feet over to the street. So I don't
17 get street noise. So if you're the rooftop
18 terrace, then now I'm in my living room.
19 Directly across from my living
20 room is public bar, which has an outdoor
21 space, which for the most part faces 18th
22 Street, just the way they have it set up.
Neal R. Gross and Co., Inc. 202-234-4433 Page 309 1 Then I move through my living room
2 to my second window. Now I'm looking at 18th
3 Street, which he's referenced. Keep going, I
4 go into my bedroom in the back, which is on
5 the southeast corner of the building.
6 And the diagonal of the building
7 points dead at Ozio. So I can see it, I can
8 hear it. And for me, I mean, it's just it's
9 a human sound test of saying if I hear noise,
10 I just move through the unit. And where does
11 it get louder?
12 And you know, sometimes you can't
13 tell. I personally am not home a lot on the
14 weekends. I have a 86 year old father,
15 extended family up in New Jersey, I have
16 business travel.
17 So I personally have not called to
18 complain all that often. I think only once,
19 the recent phone call that I remember calling
20 directly, had email exchanges with Steven.
21 I can say that, you know, the
22 neighbors overall have had some frustration,
Neal R. Gross and Co., Inc. 202-234-4433 Page 310 1 you know, with the process.
2 I mean, we thought when we finally
3 did get to the final agreement, we did have
4 advice of counsel, we were very concerned
5 about trying to put in all this sort of
6 hypothetical stuff that was difficult to
7 measure, and finally said, you know, at the
8 end of the day, the way the law is currently,
9 the attorney says the way the law is written,
10 you should be protected if the law is
11 enforced.
12 So we said fine, let's have the
13 law be enforced. You know, let's put that
14 language in there, which we did. And we
15 always had this sort of thing of
16 reasonableness.
17 I never doubted that they wanted
18 to be reasonable and so forth. So that was
19 the other paragraph, that if it's bothering
20 you, you know, if it bothers you in your home,
21 that's not what we want to do, you know that.
22 What the residents don't want to
Neal R. Gross and Co., Inc. 202-234-4433 Page 311 1 be is the enforcers where, you know, action's
2 only taken if they call. And so I think, you
3 know, at the end of the day it would be
4 difficult to say the current agreement works
5 because it actually isn't being enforced.
6 You can argue whether or not
7 they're all complying with it, but the
8 current, you know, I mean, I had an email from
9 an ABRA Inspector in July of 2011 telling me
10 that he understood that the Jefferson Row
11 residents were complaining about noise from
12 Ozio, and that he had been there and had heard
13 some noise from there and from other
14 establishments, but it's not a violation
15 because you're in a commercial zone.
16 So at that point people say, well
17 I don't know what I'm supposed to do. And so
18 I think people do hesitate, they hesitate to
19 call Ozio because they just don't feel like,
20 you know, having to go back and forth.
21 When they call, I do have emails
22 of people calling the police or calling ABRA.
Neal R. Gross and Co., Inc. 202-234-4433 Page 312 1 And you know, even if one of them comes out,
2 like, their process would be you have to wait
3 for them to come out to your home.
4 So you call at 1:30 in the
5 morning, then you have to wait for them to
6 come out. And then they listen. And in
7 fairness, in a lot of those units, sometimes
8 you can't tell where the noise is coming from.
9 But as Steven testified when his
10 own person came, in this case it was in the
11 reverse, his person came to the unit above
12 mine, which is the most exposed, it's on the
13 penthouse level, so it's the sixth and seventh
14 floor of its own terrace.
15 And his guy was able to discern oh
16 no, the music's not coming from Ozio, it's
17 coming from Public Bar, because when you're in
18 the full open space, you can kind of tell
19 where it's coming from.
20 In some of the units that are more
21 interior, it might be a little bit more
22 difficult. And I guess the other thing,
Neal R. Gross and Co., Inc. 202-234-4433 Page 313 1 because you were asking questions about
2 perspective just to give you, so the unit, it
3 was converted of four town homes basically
4 that front on Jefferson Place.
5 Then a developer added a seven
6 story building to the back of that and
7 connected it all, okay? So most of the units,
8 it's a 23 unit condominium, 15 of them are in
9 the rear of the building, which means they
10 have windows, at a minimum, on the alley.
11 The other eight are street front.
12 And of the units, the problem with that alley
13 in part, which is what the problem Ozio faces,
14 is that everything is level, right?
15 You know, there's no barriers, but
16 there is a barrier if you go east, you hit the
17 wall of an office building. If you go south,
18 across M Street, you hit another office
19 building.
20 So this sound is kind of like
21 directed as a canyon, right? It has that
22 canyon effect down there. And the Unit 13
Neal R. Gross and Co., Inc. 202-234-4433 Page 314 1 that was mentioned that was originally part of
2 the sound testing, that actually is in the
3 dead center, it's one of the center units.
4 I think that one is on the third
5 floor, yes. So being in the center on the
6 third floor, and he did complain. He
7 participated in the sound test, he understood
8 what all the issues were.
9 And he was actually the person
10 that complained first in May of 2011. You'll
11 recall that I think the Ozio records and you
12 might have the emails, he called several times
13 over the course of a couple days.
14 He eventually moved because he
15 just couldn't get, you know, he just felt like
16 it was just too much at night. He worked at
17 home a lot.
18 So I think, but you know, our view
19 has always been, we were told, as I said, that
20 the law does not apply. Our view is if the
21 law is sufficient to govern the noise level,
22 then that's the most level playing field for
Neal R. Gross and Co., Inc. 202-234-4433 Page 315 1 the businesses and for the citizens.
2 Like yes, everybody's on an even
3 field, then you just enforce them. And, you
4 know, that's why we welcomed Director
5 Moosally's statements to the effect that they
6 hadn't really been enforcing it, and they
7 wouldn't enforce it.
8 To the extent that, I believe that
9 in this situation where they have an open air
10 club that is just, you know, 100, 150 feet
11 from residents where they want to play dance
12 music and have people, I mean, we're in the
13 wintertime.
14 In the summertime, they're going
15 to want to open this rooftop and people are
16 going to want to dance under the stars. I
17 mean, that's just the reality.
18 But I don't know how it's possible
19 for them to do that then without having
20 certain conditions and some sort of agreement.
21 You know, I don't know what the process is.
22 I guess it's this agreement
Neal R. Gross and Co., Inc. 202-234-4433 Page 316 1 attached to the license that says in order to
2 make sure that we achieve the noise levels
3 required by law, these are the things we are
4 going to do, and make it a little more
5 specific and enforceable.
6 MS. PECK: Do you have any other
7 specific requests that you think would be
8 helpful that might bring down the noise levels
9 or address the concerns, whether it relates to
10 Ozio or more broadly?
11 MS. KAPPEL: Well I mean, I think
12 what I said in the letter was part of the
13 reason we didn't marshal a group of five to
14 initially protest Ozio was because at that
15 time, we felt like all we would be doing is
16 renegotiating an agreement because of the
17 objective would be to get to an agreement.
18 And we didn't think the agreement
19 was the problem. We felt like that clearly
20 part of the problem in that area is having
21 consistent application across the properties.
22 And so we don't have agreements
Neal R. Gross and Co., Inc. 202-234-4433 Page 317 1 with each of the establishments that have
2 outdoor facilities. And the ones that do have
3 different agreements with different
4 conditions.
5 So I don't know how you get that
6 consistency. And so our view was, and we did
7 address that with the ANC, because we think
8 that process actually is quite good.
9 We get a little frustrated
10 sometimes because we end up having to work
11 with different people on different issues.
12 You know, we get handed off. But overall,
13 they have been very, very accommodating in
14 working with us.
15 And so we talk with them, express
16 all those concerns. We say look, they're not
17 the perfect neighbors. There are situations
18 where the noise is too loud.
19 But we have this agreement. And I
20 don't know what you put in the new agreement
21 that's going to change any of that stuff. And
22 so they have then pursued, they protested the
Neal R. Gross and Co., Inc. 202-234-4433 Page 318 1 other agreements, or other licenses and are
2 pursuing agreements with those hopefully to
3 bring some sort of consistency to the
4 management of it.
5 So the only other thing I would
6 offer, I guess, is that there's this question
7 of roof open and roof closed. And I don't
8 have an answer for that.
9 I mean, we thought when we went
10 into this, I mean, we had residents that were
11 adamant that this had to be absolute,
12 paramount, negotiated, you cannot open this
13 rooftop. This will, you know, be the problem.
14 But you know, sometimes the noise
15 has been, when I've been home, sometimes the
16 noise is too loud when the thing is closed,
17 and sometimes it's okay when it's open or
18 partially open.
19 So I mean, I can't say that it is
20 absolutely that rooftop. I mean,
21 realistically, I could be wrong, but I don't
22 remember it being insulated.
Neal R. Gross and Co., Inc. 202-234-4433 Page 319 1 And I just can't imagine
2 advertising a rooftop facility in the
3 summertime and saying we're going to close the
4 roof. Like, it's just, it's unrealistic to
5 me.
6 So the answer, we had people say
7 that all the time and I kept saying okay, that
8 sounds great in March. But I mean, in July,
9 like, who's going to go into a place with a
10 glass roof in the sun? Like, nobody.
11 So I mean, it has to be, there has
12 to be some way to control these levels. And
13 it has to be, obviously, with intended
14 compliance on the part of the licensee.
15 But also there has to be some
16 enforcement. I mean, if there's not going to
17 be any enforcement, what incentive do people
18 have to keep, because if he complies and the
19 guy next door doesn't comply, then we're back
20 to the same problem.
21 MEMBER ALBERTI: Mr. Fonseca?
22 MR. FONSECA: Thank you. Good to
Neal R. Gross and Co., Inc. 202-234-4433 Page 320 1 see you again Anne.
2 MS. KAPPEL: You too.
3 MR. FONSECA: I think, I mean
4 obviously you've been here all day, so you've
5 heard everyone's testimony.
6 You understand that in terms of
7 follow up, we are looking at trying to be
8 compliant with the Noise Control Act decibel
9 readings now, of which ABRA's never enforced
10 because, you know, frankly they weren't the
11 Agency and they still aren't.
12 So even with this task force, you
13 know, it's MPD, it's as I understand it MPD,
14 DCRA, and ABRA. And we'll see how it works.
15 I believe them. They're out to enforce it.
16 I've advised my client and he
17 believes it. So hearing what you've heard
18 today, if these numbers stand up, is it safe
19 to say that you can live with that because at
20 least there's enforcement?
21 Understand that you still might
22 hear music, but it should probably be better,
Neal R. Gross and Co., Inc. 202-234-4433 Page 321 1 we're hoping.
2 MS. KAPPEL: Let me make just two
3 observations because I don't even really, I
4 don't want to get put in a box on
5 hypotheticals and not whether or not it's
6 open.
7 MR. FONSECA: Yes.
8 MS. KAPPEL: I was not home again
9 last week when you're talking about doing
10 these tests. But I did send a message to
11 neighbors and say, you know, tell them ABRA's
12 coming in here.
13 And reports that I got back were
14 that it was quiet. So I don't know what you
15 were doing Friday night. But whether that was
16 a result of the sound engineer, but people
17 said things were quiet.
18 So that's encouraging if there's a
19 correlation between that and whatever went on
20 Friday night. At the same time, I think I put
21 this in the letter, right after word got out
22 that things were going to be monitored,
Neal R. Gross and Co., Inc. 202-234-4433 Page 322 1 everything was really quiet.
2 And then we had that instance on
3 the 20th or whatever that I called in. But
4 then, like, a week and a half later, it was
5 March 8th because I came back from the west
6 coast, that's how I remember, it was very,
7 very loud again.
8 And I didn't call because frankly
9 I was on west coast time and I knew I was
10 going to be up until 3 o'clock in the morning
11 anyway.
12 So you know, I wasn't really
13 worried. I worry about going to sleep, I
14 don't worry about hearing music, I just worry
15 about going to sleep.
16 So I didn't call. And it went
17 until closing, and it went off. And
18 presumably it sounds like nobody else called
19 to complain that night or whatever, but I'm
20 just making that observation.
21 So it's just hard for me to gauge,
22 you know, what the controls, what works or
Neal R. Gross and Co., Inc. 202-234-4433 Page 323 1 what doesn't because I think the intention, I
2 firmly believe in all the conversations, email
3 exchanges, everything else I've had, we have
4 spent a lot of time together. He's not lying.
5 But in all of that, I don't doubt
6 the sincerity. It's just the reality on the
7 practical side, like, I don't know what was
8 different on March 8th and on February 20. I
9 don't know.
10 All I know is I can hear this
11 stuff pounded in my apartment, right? So any
12 steps that move us forward, I think, are
13 welcome. Anything that's measurable,
14 enforceable, you know, and hopefully we get
15 some consistency.
16 MR. FONSECA: Okay. To your
17 knowledge, is there any way that Ozio's sounds
18 that you all are hearing, is it reaching the
19 Palladium where they could discern it?
20 MS. KAPPEL: You know, that's a
21 hard one for me to gauge because I do think
22 again, you know, when you have this canyon
Neal R. Gross and Co., Inc. 202-234-4433 Page 324 1 effect, stuff moves, right?
2 But you clearly have other
3 properties which I'm sure Mr. Silverstein is
4 aware of if others are not aware. So this is
5 a place where 18th and Connecticut come
6 together.
7 So you have properties on
8 Connecticut Avenue, on the east side of
9 Connecticut Avenue, and then 18th on the west
10 side. So it's kind of like this big four, six
11 lane intersection, that do have rooftop
12 facilities as well where these are new, trying
13 to compete with the Christacos it seems, but
14 they have cropped up since.
15 And so they are also playing
16 music. And I think only Public Bar to date
17 has had any kind of a voluntary agreement.
18 The others have been protested and there's
19 negotiation. That's my understanding.
20 So I don't know. I mean, I can't
21 really say. When you say can you discern Ozio
22 from all of that, I think that's for you guys
Neal R. Gross and Co., Inc. 202-234-4433 Page 325 1 to conclude. I'm just, you know, sort of
2 outlining it.
3 MR. FONSECA: Of course,
4 certainly. Tell me this, I mean, you've known
5 Ms. Nichols for a while, correct? And how
6 long have you known Ms. Peck?
7 MS. KAPPEL: I really only met her
8 recently. Recently.
9 MR. FONSECA: And you know, you
10 were involved with this from 2010, 2011 to the
11 present. And when did you first start talking
12 with Ms. Nichols about noise that they've seen
13 get to be even more and more of a problem over
14 at the Palladium?
15 MS. KAPPEL: Well you know, I
16 guess I'm getting older because the days run
17 together. But --
18 MR. FONSECA: I'm with you there.
19 MS. KAPPEL: So my recollection
20 is, and I never even understood this, I have
21 to say, even though I look at these license
22 renewals.
Neal R. Gross and Co., Inc. 202-234-4433 Page 326 1 I never knew that they were sort
2 of on a cycle and that, you know, everybody in
3 my neighborhood was going to come up in the
4 same year, which is now I guess why I get a
5 little crazy every three years.
6 But so there was some discussion
7 in the fall, I recall. Well I mean, going
8 back a couple years, I actually was going back
9 through emails. I think she did send me some
10 emails previously about night noise, but we
11 never really connected it, I don't think, to
12 the rooftops until maybe recently, recent
13 correspondence over, because some of those
14 rooftop spaces are new.
15 MR. FONSECA: Do you know which
16 ones those are, because that's kind of
17 important for the Board to understand the
18 dynamic.
19 MS. KAPPEL: Well Midtown I'm
20 almost positive is new because I didn't know
21 whether or not that was even legal when I saw
22 them put the welcome banner that was, like, 15
Neal R. Gross and Co., Inc. 202-234-4433 Page 327 1 feet by 15 feet hanging off the building,
2 welcome to our rooftop space.
3 MEMBER ALBERTI: Who's this?
4 MR. FONSECA: Can you identify --
5 MS. KAPPEL: Midtown it's called.
6 MR. FONSECA: Can you identify
7 where Midtown is?
8 MS. KAPPEL: So Midtown would be
9 almost directly, well almost 90 degrees, due
10 east of Jefferson Place. So if you crossed
11 18th and Connecticut, and you were on
12 Connecticut, then you would run basically into
13 Midtown.
14 MR. FONSECA: And does Midtown
15 have a rooftop?
16 MS. KAPPEL: They do now, yes.
17 MR. FONSECA: And does that go to
18 the back or does that come toward the front to
19 Connecticut?
20 MS. KAPPEL: That would come
21 toward the front. And we do have units in the
22 front that, you know, have complained about
Neal R. Gross and Co., Inc. 202-234-4433 Page 328 1 noise. But the difference with the units in
2 the front is when people talk about ambient
3 noise, they get ambient noise.
4 They get street noise, they get
5 people walking down the streets. In my
6 apartment, it's no louder than this. I mean,
7 I will hear trash trucks in the alleyway or
8 loud talking or if there's a fight or
9 something in the alleyway.
10 But you don't hear anything in
11 there except the music. And so, you know,
12 they get a lot of mixture out there. So they
13 have complained before.
14 At one point a couple years ago
15 they complained about Current Sushi, which I
16 think was operating without a license. They
17 were playing music in their backyard or
18 something, throwing backyard parties. I don't
19 really know.
20 But it was traveling down
21 Jefferson Place because of this canyon effect,
22 and it was bouncing off everything. But they
Neal R. Gross and Co., Inc. 202-234-4433 Page 329 1 knew that, they recognized that.
2 So I think the sound engineer was
3 correct when he was talking about testing Ozio
4 in particular because I recall that when he
5 was there. I mean, you know, I went through
6 five hours of these things on two different
7 nights.
8 So when you walk to the front of
9 the building, I would say you really can't
10 discern Ozio standing in front of our building
11 on Jefferson Place. It's really more an issue
12 for the 15 units in the rear of the building.
13 Any noise that comes from
14 Eighteenth and Public is probably going to go
15 a little bit in both directions. The Heist
16 that the inspector mentioned, I don't
17 understand that at all because that facility
18 is underground, so unless the door's open, I
19 don't know where that noise would come from.
20 MR. FONSECA: Well that's helpful
21 because identify, when you say Public and
22 Eighteenth, you're talking Eighteenth Street
Neal R. Gross and Co., Inc. 202-234-4433 Page 330 1 Lounge?
2 MS. KAPPEL: Sorry, Eighteenth
3 Street Lounge and Public Bar are for all
4 practical purposes, from the rooftop
5 perspective, it looks like it's one place
6 because, you know, they're right up against
7 each other.
8 MR. FONSECA: Anything else? Well
9 thank you. I thank you for being here all
10 day.
11 MS. KAPPEL: Sure.
12 MR. FONSECA: I know it's been a
13 long day. No further questions, thank you.
14 MEMBER ALBERTI: Thank you, Mr.
15 Fonseca. Thank you, Ms. Kappel. Board
16 questions now for you. Mr. Silverstein, you
17 want to start?
18 MEMBER SILVERSTEIN: Yes. Thank
19 you for your patience and for being involved
20 in this for so long. And thank you for your
21 testimony that I think has been fair and not
22 one sided.
Neal R. Gross and Co., Inc. 202-234-4433 Page 331 1 But you understand that this is a
2 very difficult situation that everyone's in.
3 I'm going to ask you, because I'm not sure
4 everybody understands just where you guys are.
5 Walk out your front door, and walk
6 around your block, and tell me how many
7 places, how many licensed establishments you
8 have in just the block, the square that you're
9 in.
10 MS. KAPPEL: Okay. Permission to
11 stand. Visuals are always --
12 MEMBER ALBERTI: Yes, please.
13 Please.
14 MEMBER SILVERSTEIN: But be by a
15 microphone so that you can --
16 MS. KAPPEL: Oh, right. I forgot
17 about that, okay.
18 MEMBER SILVERSTEIN: Right.
19 MS. KAPPEL: I was going to use
20 that as the, okay. So I'm standing at the
21 front door of Jefferson Place. Okay --
22 MEMBER SILVERSTEIN: Turn to the
Neal R. Gross and Co., Inc. 202-234-4433 Page 332 1 left.
2 MS. KAPPEL: To my left are the
3 doorways to three units of Jefferson Place and
4 a side entrance to the Roosevelt House, which
5 is on the corner of 19th and Jefferson.
6 Across the street, on the corner
7 of Jefferson and 19th. Come back to my front
8 door, now I'm looking at the entrance to a
9 garage.
10 To the right of that, St.
11 Arnold's, which is a bar downstairs. An
12 office building. Next to that, an Italian
13 restaurant.
14 Then on our side of Jefferson,
15 it's all commercial property, no bars or
16 restaurants. So those are the only bars and
17 restaurants physically on Jefferson.
18 Then you get to the alley, what we
19 call the north/south alley that runs behind
20 18th Street.
21 MEMBER SILVERSTEIN: No, I want
22 you to go to 19th Street.
Neal R. Gross and Co., Inc. 202-234-4433 Page 333 1 MS. KAPPEL: Oh, I was going
2 toward 18th, sorry. I was making my trip to
3 the right.
4 MEMBER SILVERSTEIN: Okay,
5 continue. Go ahead, go ahead.
6 MS. KAPPEL: So I'm going down to
7 about the alley that runs adjacent to 18th,
8 across the alley. So there's a building,
9 which I believe is 1812 18th Street, I believe
10 that's the address.
11 It has three licenses attached to
12 it. One is Heist, which is in the basement,
13 entrance on Jefferson. Second is Shake Shack,
14 which is a burger place that has beer and
15 wine.
16 And the third is the not yet
17 completed next nightmare we have to deal with
18 which was called Guitar Bar, now is called
19 Souse House or something and they're
20 constructing a new rooftop area. Then to the
21 right, which --
22 MEMBER SILVERSTEIN: This is right
Neal R. Gross and Co., Inc. 202-234-4433 Page 334 1 smack looking right at you a few feet away.
2 MS. KAPPEL: Well yes, this is on
3 Jefferson. And then you make a right on 18th
4 and you have, so then you have, let's see, the
5 entrance to what was Cento Cinco, now it's
6 MIA. That's in the same building as Public
7 Bar.
8 Then you have the entrance to
9 something else now they just named it.
10 Anyway, one's on the top level, one's in the
11 middle level, one's on the bottom level. It's
12 all in the same building.
13 And then you have Thai Way, which
14 is Oriental food. Then you have Sprint or
15 something. Oh no, then you have 18th Street
16 Lounge which has no sign, but you walk up and
17 you get up there somehow to the building at
18 the top level.
19 And then you have the office
20 building. And then the Daily Grill's on the
21 corner.
22 MEMBER SILVERSTEIN: You forgot
Neal R. Gross and Co., Inc. 202-234-4433 Page 335 1 Nando's.
2 MS. KAPPEL: What?
3 MEMBER SILVERSTEIN: You forgot
4 Nando's Peri-Peri.
5 MS. KAPPEL: Oh yes, I did.
6 Sorry, Nando's. Yes, so that's a restaurant.
7 Then you go around the corner. Now the office
8 building, cross the alley, Ozio.
9 Then next to Ozio is something
10 that keeps changing names, it's a pie
11 restaurant. It's Bubba's Sandwiches or
12 something.
13 MEMBER SILVERSTEIN: Yes.
14 MS. KAPPEL: Then there's the 1819
15 Club, which is the one that has the stripper
16 license. It never opens. Then you have Bells
17 Beer and Wine. Then you have Camelot, who are
18 wonderful neighbors.
19 I don't know, the Sign of the
20 Whale. The kabob place, Mighty Pint
21 downstairs. Then you have a hairdresser,
22 don't ask me why it's there. And then you
Neal R. Gross and Co., Inc. 202-234-4433 Page 336 1 have Chipotle downstairs and Boqueria Tapas
2 upstairs.
3 Come around the corner, you have a
4 sandwich place. Irish Whiskey is on the alley
5 at 19th across from the Roosevelt House. Back
6 up to Jefferson, make a right, and then you're
7 back home.
8 MEMBER SILVERSTEIN: So you're
9 literally in a sea --
10 MS. KAPPEL: Yes.
11 MEMBER SILVERSTEIN: -- of
12 licensed establishments. And you have an echo
13 chamber as well? Things, what do they bounce
14 off of? What are the high structures?
15 MS. KAPPEL: In our immediate
16 area, so everything is not in our block that
17 it would bounce off of. In other words, you
18 have an office building at, let's see,
19 Jefferson and 18th, you have an office
20 building at 18th and M.
21 But that's it in the entire four
22 square of Jefferson, 18, 19, M Street. That's
Neal R. Gross and Co., Inc. 202-234-4433 Page 337 1 it in terms of physically located. Everything
2 else is on the other side of the street.
3 MEMBER SILVERSTEIN: So the
4 reality is that we could shut this place down
5 and your problem would not be alleviated
6 because there's just so much else going on
7 here that it's not just them.
8 And this doesn't say that they're,
9 you know, they're blameless or anything like
10 that. The problem is a lot more that you are
11 in a sea of nightlife, probably more than any
12 condo that I know in the city.
13 MS. KAPPEL: Well yes we are, but
14 I will say, and I think we've repeatedly said
15 this, the only problem our residents have as
16 it relates to noise is noise coming from these
17 rooftop establishments. I mean --
18 MEMBER SILVERSTEIN: So your
19 saying but the noise is it rooftop noise?
20 MS. KAPPEL: Yes. I mean, you can
21 tell. People know where they live, they know
22 they're going to get street noise. They know
Neal R. Gross and Co., Inc. 202-234-4433 Page 338 1 they're going to get people walking by and all
2 that kind of stuff.
3 And we don't get noise from, like,
4 all those places on M Street that are closed
5 establishments and operating in closed, you
6 know, fully closed, we don't get noise from
7 them.
8 The only time we ever had a noise
9 problem from any one of them was when Mighty
10 Pint was leaving its back door open. We
11 complained. We asked the ANC to intercede.
12 And we actually put something in
13 their agreement that says they're not allowed
14 to leave their back door open. But you know,
15 other than that, we just don't have problems.
16 The only noise problem that is
17 repeatedly, you know, reported is related to
18 music coming from the rooftop establishments.
19 That's it.
20 MEMBER SILVERSTEIN: And --
21 MS. KAPPEL: I'm not saying there
22 isn't some noise, but obviously people have to
Neal R. Gross and Co., Inc. 202-234-4433 Page 339 1 accept noise if they live there.
2 MEMBER SILVERSTEIN: Which rooftop
3 establishments, plural, can you point to?
4 MS. KAPPEL: Up to this point, the
5 ones that have been identified as problematic,
6 you know, producing noise that we know we were
7 getting were Ozio, 18th Street Lounge, and
8 Public Bar.
9 However, as I said, when the new
10 places opened, like, at Midtown, and I think
11 it's RoseBar right next door. Right? Am I
12 getting that geography right? It's Midtown
13 and then RoseBar, I think. So they're right
14 next door. So --
15 MEMBER SILVERSTEIN: They're right
16 across Connecticut Avenue?
17 MS. KAPPEL: Yes. But it's across
18 Connecticut directly opposite Jefferson Place,
19 the street, right?
20 MEMBER SILVERSTEIN: So the sound
21 comes down --
22 MS. KAPPEL: So the sound's coming
Neal R. Gross and Co., Inc. 202-234-4433 Page 340 1 down and it's hitting the people in the front
2 of the building. People in the rear of the
3 building, which is where most of the units
4 are, but they're getting the noise from Ozio,
5 18th Street, and Public.
6 MEMBER SILVERSTEIN: Okay.
7 MS. KAPPEL: Yes.
8 MEMBER SILVERSTEIN: And you folks
9 don't believe that you're entitled to perfect
10 silence and whatever? You know you're in a
11 city and --
12 MS. KAPPEL: Absolutely.
13 MEMBER SILVERSTEIN: -- you know
14 that you're going to have trash trucks and the
15 doors opening and --
16 MS. KAPPEL: Yes, the trash trucks
17 we --
18 MEMBER SILVERSTEIN: -- fire
19 engines and --
20 MS. KAPPEL: -- complained about
21 but we've worked with the --
22 MEMBER SILVERSTEIN: -- trucks and
Neal R. Gross and Co., Inc. 202-234-4433 Page 341 1 --
2 MS. KAPPEL: -- Golden Triangle on
3 that trying to get them to come later. And
4 we've worked through the Golden Triangle on
5 the trash trucks, we worked with them to get
6 the alley paved.
7 So I mean, I know of a lot of
8 these owners and these managers in these
9 businesses, we don't really hesitate to, and
10 most of them are pretty cooperative.
11 But it's just this one thing. And
12 the problem is that when it disturbs you, it's
13 2 o'clock in the morning, like, 1:00 or 2
14 o'clock in the morning.
15 Like, I don't know, maybe it's a
16 holiday, 4th of July, and they're blasting and
17 having a great old barbeque, you know, I don't
18 know anybody would care.
19 But the problem is because of the
20 way the night life is, it's you know,
21 literally if you're home, you'll hear it crank
22 up after 11:00, the noise goes up.
Neal R. Gross and Co., Inc. 202-234-4433 Page 342 1 And so for me, I'm a pretty sound
2 sleeper. So if I'm in bed and I'm asleep,
3 unless it's really, really loud, I might not
4 wake up. But if I wake up, I guarantee you
5 I'm not going back to sleep.
6 And then we have other people who
7 just can't even go to sleep. So that is, I
8 mean, in our view that is the problem. Even
9 though you have other safety issues that have
10 to be dealt with, how many people, how many
11 seats, that's for all of you to figure out.
12 The only thing since I've lived
13 there in, so it's almost seven years I've
14 lived there, the only primary thing that
15 relates to these bars that I get asked to
16 address on behalf of the residents has to do
17 with noise, and it always comes back to the
18 rooftop noise.
19 MEMBER SILVERSTEIN: Thank you.
20 Thank you very much. No further questions.
21 MEMBER ALBERTI: Thank you, Ms.
22 Kappel. That's been very helpful to me. I
Neal R. Gross and Co., Inc. 202-234-4433 Page 343 1 just want to get a sense of what it's like in
2 your apartment when you're hearing noise.
3 And this is not just directed at
4 Ozio. I mean, I think Mr. Silverstein got at
5 an important question for me is identifying
6 the bigger issue here, because it's obvious
7 that we have more than just one producer of
8 sound.
9 So I mean, can you ever, ever
10 identify it as one establishment?
11 MS. KAPPEL: Well as I said, when
12 I do because of the way my unit is located,
13 let me, probably a couple qualifiers. First
14 of all, if I'm home, okay I have this terrace.
15 I sit outside.
16 If I'm sitting outside in the
17 summertime, and some of these guys are playing
18 music at 9 o'clock at night or whatever,
19 truthfully I probably don't care.
20 I mean, I'm just sitting outside,
21 I'm talking. I'm benefitting from their music
22 or whatever, you know. So some of that
Neal R. Gross and Co., Inc. 202-234-4433 Page 344 1 applies inside, I mean, if it's just sort of
2 background or if I have the television on or
3 whatever.
4 I mean, I'm definitely not a
5 complainer on principal, if you will. My
6 benchmark is always can I go to sleep. So if
7 I'm deciding, which you know, the bedroom's in
8 the rear of the building, I'm trying, I want
9 to go to sleep.
10 I'm in the living room. I hear a
11 noise. If I go to the back into the bedroom
12 and the noise level is about the same, then
13 for me, it's kind of like well it's there.
14 They're all cranking. I'm not really sure
15 where it's coming from because the noise level
16 hasn't changed.
17 But if I go to the back and the
18 noise is louder, then just by virtue of the
19 proximity of where Ozio is, I'm like well it
20 has to be them, relative to my bedroom.
21 And so that's why I called the
22 night that I called. And the reason I told
Neal R. Gross and Co., Inc. 202-234-4433 Page 345 1 them not to call me back is was I just didn't
2 want to get into that process. It was already
3 late enough.
4 I just was like turn it down. And
5 they obviously knew what to do because within
6 ten minutes they turned it down and it was
7 fine.
8 MEMBER ALBERTI: Great. Is the
9 nature of that sound that you're hearing bass?
10 MS. KAPPEL: The bass used to be
11 almost nauseating. And I have to say I don't
12 know what they or others have done, but the
13 bass situation is better. Like, it must be
14 being controlled, at least when I hear it.
15 But the music level is loud. So
16 you know, I don't know about all these
17 controls or how they put all that into place.
18 But clearly, for a long time, almost when I
19 would get these emails when people would
20 complain about the noise, it was the boom,
21 boom, boom. It was bass, right?
22 MEMBER ALBERTI: You hear that a
Neal R. Gross and Co., Inc. 202-234-4433 Page 346 1 lot?
2 MS. KAPPEL: Yes. And there was
3 no question if they, you know, if they don't
4 control the bass, it will almost reverberate.
5 But lately, it just seems like, at least when
6 I recall my personal last two instances, it
7 was just loud music. Like, I wouldn't have
8 discerned bass as the primary problem.
9 MEMBER ALBERTI: Thank you very
10 much. You've been very helpful.
11 MS. KAPPEL: You're welcome.
12 MEMBER ALBERTI: Any other Board
13 members? Okay. Okay, so redirect, Ms. Peck?
14 MS. PECK: I just have one
15 question.
16 MS. KAPPEL: Yes.
17 MS. PECK: You mentioned that
18 tenants, residents in the front of the
19 building can hear music coming from the roof
20 deck on Midtown.
21 MS. KAPPEL: That's what we think,
22 yes.
Neal R. Gross and Co., Inc. 202-234-4433 Page 347 1 MS. PECK: That's what you think?
2 MS. KAPPEL: Yes. I mean, that's
3 where they're associated.
4 MS. PECK: So how far of a
5 distance is that?
6 MS. KAPPEL: Oh gosh. You know, I
7 am so bad in the feet and inches. I can kind
8 of give you, like, the relative measure. So
9 it would be, let's see, it's probably six
10 brownstone equivalents between the end of us
11 and the alley and then the Shake Shack
12 building.
13 So what is that, I don't know.
14 Maybe 150 feet or something? And then you
15 have to cross 18th and Connecticut. So maybe
16 another 100 feet. I don't know, 250, 300
17 feet, something like that.
18 I don't, I'm just not the best of
19 doing that in terms of feet. I mean, if you
20 had a map I probably could figure it out. But
21 I mean, it's obviously further than the 150
22 feet to Ozio. Maybe double the length, a
Neal R. Gross and Co., Inc. 202-234-4433 Page 348 1 little bit more.
2 MS. PECK: Thank you.
3 MEMBER ALBERTI: Mr. Fonseca,
4 recross?
5 MR. FONSECA: Actually, I will on
6 this question. And then just I think I might
7 have one other. I'm showing you the
8 investigator's report, her Exhibit 2 which had
9 this 400 foot circle of what's around Ozio.
10 Are you seeing that the Midtown
11 and those other places are on the Connecticut
12 Avenue side? If you could place this as M
13 Street and this as Jefferson Place.
14 MS. KAPPEL: And this is Rhode
15 Island? Yes, they're in here.
16 MR. FONSECA: So those were all
17 within that 400 foot circle?
18 MS. KAPPEL: Yes.
19 MEMBER ALBERTI: For the record,
20 you're pointing out that Midtown's within the
21 400 foot circle, or you're pointing out what?
22 MR. FONSECA: Midtown and the
Neal R. Gross and Co., Inc. 202-234-4433 Page 349 1 other --
2 MS. KAPPEL: RoseBar, all of the
3 ones.
4 (Crosstalk)
5 MR. FONSECA: -- other side of
6 Connecticut.
7 MEMBER ALBERTI: Okay.
8 MS. KAPPEL: I think there's a
9 total of one, two, three --
10 MR. FONSECA: It's under 400.
11 (Crosstalk)
12 MEMBER ALBERTI: If we can't pick
13 a point in here, I'm just --
14 MR. FONSECA: Well that's why I
15 referenced for the record, it's Exhibit 2 to
16 the --
17 MS. KAPPEL: I think there's six
18 licenses --
19 MR. FONSECA: -- Inspector's
20 Report.
21 MEMBER ALBERTI: All right, thank
22 you.
Neal R. Gross and Co., Inc. 202-234-4433 Page 350 1 MS. KAPPEL: -- active. And then
2 this one that is, I guess, in sort of limbo
3 status until they finish their construction or
4 something. Not a license, but it's not a --
5 MEMBER ALBERTI: Any additional
6 questions. Mr. Fonseca?
7 MR. FONSECA: No. I don't think
8 so.
9 MEMBER ALBERTI: Pardon?
10 MR. FONSECA: No. No further
11 questions.
12 MEMBER ALBERTI: Okay, great. I
13 think we have an additional question from Mr.
14 Silverstein?
15 MEMBER SILVERSTEIN: Just one
16 clarification. As you're going around the
17 block, the building with the Daily Grill in
18 it?
19 MS. KAPPEL: Yes.
20 MEMBER SILVERSTEIN: How tall is
21 that?
22 MS. KAPPEL: It's an office
Neal R. Gross and Co., Inc. 202-234-4433 Page 351 1 building. So my assumption, since most of
2 them build to the 13 story maximum, it's got
3 to be, maybe it's 11 to 13, something like
4 that.
5 MEMBER SILVERSTEIN: Okay, and
6 things would bounce off of that and back into
7 your block, correct?
8 MS. KAPPEL: Correct. Yes, if
9 they were coming up from M Street. I mean --
10 MEMBER SILVERSTEIN: And is Ozio
11 on M Street?
12 MS. KAPPEL: Yes, but he's down at
13 the other end. It's down at the 18th Street
14 end.
15 MEMBER SILVERSTEIN: But things
16 would not be going across Connecticut Avenue
17 above that directly, correct?
18 MS. KAPPEL: Yes, but we're not
19 across Connecticut. I guess I'm losing you.
20 In other words, they're down by 18th and M.
21 MEMBER SILVERSTEIN: Right.
22 MS. KAPPEL: And the Palm is at
Neal R. Gross and Co., Inc. 202-234-4433 Page 352 1 19th and Jefferson, so it's the other end.
2 MEMBER SILVERSTEIN: I'm talking
3 about the Daily Grill.
4 MS. KAPPEL: Oh gosh, I'm so
5 sorry.
6 MEMBER ALBERTI: Why don't give, I
7 mean, since --
8 MEMBER SILVERSTEIN: The Daily
9 Grill is --
10 MEMBER ALBERTI: -- and since I
11 don't know where it is, why don't we, for the
12 record --
13 MEMBER SILVERSTEIN: -- at 15th
14 and M.
15 MS. KAPPEL: Correct, I'm sorry,
16 yes. Yes.
17 MEMBER SILVERSTEIN: And that's an
18 office building?
19 MS. KAPPEL: Correct, yes. And
20 yes, the sound from Ozio would hit that and
21 bounce off.
22 MEMBER SILVERSTEIN: So it would
Neal R. Gross and Co., Inc. 202-234-4433 Page 353 1 bounce back and that might actually even
2 amplify things in --
3 MS. KAPPEL: Correct.
4 MEMBER SILVERSTEIN: -- your area,
5 but would somewhat buffet, or would block
6 things from going to the east?
7 MS. KAPPEL: Yes, yes.
8 MEMBER SILVERSTEIN: Thank you.
9 And thank you for your testimony.
10 MEMBER ALBERTI: Thank you for the
11 lead in question, Mr. Silverstein.
12 MS. KAPPEL: It's dinnertime. You
13 can't talk about restaurants at dinnertime.
14 MEMBER ALBERTI: Okay. I'm going
15 to assume there's no questions on that
16 clarification. So thank you, Ms. Kappel.
17 Thank you for staying with us, thank you for
18 your testimony.
19 I'm going to get a read on sound
20 right now from Mr. Jones. I mean, sound, God,
21 I mean on time right now from Mr. Jones.
22 MEMBER JONES: I wouldn't be any
Neal R. Gross and Co., Inc. 202-234-4433 Page 354 1 help with that.
2 MEMBER ALBERTI: I can't have a
3 decimeter going earlier, but go ahead.
4 MEMBER JONES: Yes. The
5 protestants have 42 minutes remaining. The
6 licensee has 10 minutes remaining.
7 MEMBER ALBERTI: Okay, great, very
8 good. Okay, so you've got plenty of time Ms.
9 Peck. Do you want to do next witness?
10 MS. PECK: Okay, I would like to
11 call Carl Nelson.
12 MEMBER ALBERTI: Would you raise
13 your right hand? Remain standing and raise
14 your right hand. Do you solemnly affirm that
15 the testimony you are about to give will be
16 the truth, the whole truth, and nothing but
17 the truth?
18 MR. NELSON: I do.
19 MEMBER ALBERTI: Thank you.
20 Please be seated.
21 MS. PECK: Mr. Nelson, could you
22 please state your name and spell it for the
Neal R. Gross and Co., Inc. 202-234-4433 Page 355 1 record?
2 THE WITNESS: I'm Carl Nelson, C-
3 A-R-L, N-E-L-S-O-N. I'm a resident at the
4 Palladium Condo at 1325 18th Street. I'm a
5 trained engineer. I had 25 years as a
6 physical scientist with the U.S. Government,
7 including one project to build a computer
8 model of a strong pressure wave emanating from
9 a large caliber gun.
10 MALE PARTICIPANT: A very large
11 caliber gun.
12 (Off microphone discussion)
13 MS. PECK: And you have been the
14 person who has been operating the noise meter
15 that we've been using. Would you like to tell
16 us about where you got that meter, and what
17 you know about it, and how it works?
18 THE WITNESS: I'll start with how
19 I got it. There have been a lot of grumbling
20 and complaints in our building about late
21 night noise. And one of them even eventually
22 hit Sarah Peck.
Neal R. Gross and Co., Inc. 202-234-4433 Page 356 1 And she woke up and went down to
2 Dirty Martini, and they blew her off. And the
3 next night she took the police and ABRA down
4 there, and they said there's nothing we can
5 do.
6 That got her going. She did a
7 legal analysis, which wound up as the white
8 paper that's already been given to them. So
9 we started looking for, where, who do we go
10 to?
11 We went to DCRA, talked to the
12 noise construction group, and the group that
13 supervises, "supervises," night life. And
14 night life doesn't do night work, and the
15 construction people don't do night clubs.
16 And they basically said we don't
17 know. We don't know what's going on. Why
18 don't you do something like a sound map? Why
19 don't you tell us what's going on. We'll lend
20 you one of our meters. That was three months
21 ago.
22 We're still taking measurements.
Neal R. Gross and Co., Inc. 202-234-4433 Page 357 1 So we went out, took the thing, went out and
2 surveyed the terrain. Where are the problem
3 points?
4 We looked at the street,
5 Connecticut Avenue and 18th Street, where they
6 come together, and at night when the clubs are
7 open, if the cacophony.
8 Okay, that's part of being in the
9 city. And as far as I could tell, we either
10 weren't going to be able to measure a
11 distinction in the clubs, or it was going to
12 be so loud, and basically white noise, the
13 kind that really doesn't disturb sleep.
14 So we looked around and where is
15 all this noise coming from, because we had
16 recognized that the sound level coming up to
17 us from that block, and they're all
18 concentrated there, and there are seven with
19 outdoor facilities now, there weren't way
20 back.
21 Where is all the noise coming
22 from? We went around and we located where the
Neal R. Gross and Co., Inc. 202-234-4433 Page 358 1 noise was coming from. It was in the two
2 alleys. One behind the Connecticut Avenue
3 establishment, and one behind the 18th Street
4 establishments.
5 And one of the ones behind the
6 18th Street establishment was, is, was and is,
7 Ozio. So they were a source. We could see
8 the bar. We could see the night club up
9 there.
10 So we took the strategy of taking
11 spot readings frequently from all these places
12 where serious noise was emanating, and likely
13 to be at least part of our problem. Which we
14 did.
15 We visited nine, we went out on
16 nine nights and recorded about 100 separate
17 sound readings in the whole area, one being,
18 one point in that survey was the closest place
19 we could get to Ozio's part which was making
20 the noise.
21 Ozio's front was not a problem.
22 It was the back where the noise was coming
Neal R. Gross and Co., Inc. 202-234-4433 Page 359 1 from, the rooftop. So we took measurements,
2 and I offer those as exhibit, whatever you
3 want to call it at this point. It's Exhibit
4 H in the --
5 MS. PECK: Okay, so this is where
6 we don't know what we're doing, but let's see.
7 We've actually got, this is --
8 MEMBER ALBERTI: Okay so you have
9 a packet --
10 MS. PECK: We're going to give you
11 a packet, but if you'd like to follow along --
12 MEMBER ALBERTI: That's going to
13 be part of the packet?
14 MS. PECK: It's part of the
15 packet.
16 MR. FONSECA: Okay, we have a
17 packet.
18 MR. NELSON: Yes, yes. I prepared
19 this chart.
20 MEMBER ALBERTI: If you would,
21 okay.
22 FEMALE PARTICIPANT: Did he
Neal R. Gross and Co., Inc. 202-234-4433 Page 360 1 prepare this?
2 MEMBER ALBERTI: You can go back
3 between the table and handle this part, all
4 right.
5 (Crosstalk)
6 MS. PECK: Okay, all right, thank
7 you.
8 MEMBER ALBERTI: So --
9 MR. FONSECA: If I could at this
10 point, I'm going to just have a standing
11 objection in general. The problem is you'd
12 have to be voir dire'd, even before you
13 started all this to get a sense of, other than
14 his engineering credentials that he spoke to,
15 as to whether he really knows how to handle
16 the sound meter, or the sound meter was
17 calibrated before he got it.
18 How he's, over the last three
19 months, continued to calibrate it, and a
20 number of things as to whether it's, you know,
21 on a fast response or a slow response, much as
22 our expert testified to.
Neal R. Gross and Co., Inc. 202-234-4433 Page 361 1 And I've let him go on because I'm
2 afraid of annoying the board by objecting
3 every 15 or 20 seconds. So now that we're
4 going to get to exhibits, it really comes back
5 down to this, as to whether he can testify to
6 what he did and then give whatever credibility
7 to it.
8 But I have concerns, and at this
9 point, as long as they are not putting an
10 Exhibit C which he can testify to, which is a
11 very lengthy affidavit of his, I guess we have
12 to reach what do we do now about readings that
13 he took and their reliability.
14 MEMBER ALBERTI: So let me free
15 this up. So we have this list of readings,
16 and there is a related document you said?
17 MR. FONSECA: Yes, C, Exhibit C.
18 MEMBER ALBERTI: What is Exhibit
19 C?
20 MS. PECK: We have, C is an
21 affidavit that Mr. Nelson has prepared that he
22 has, would like to submit. And we've attached
Neal R. Gross and Co., Inc. 202-234-4433 Page 362 1 it to our initial statement.
2 MEMBER ALBERTI: What is it?
3 MS. PECK: It's a description of
4 the noise meter itself, some of the readings
5 that he took. He's also got attached to it
6 some research that he's pulled from different
7 --
8 MR. NELSON: The literature.
9 MS. PECK: -- from the literature
10 that talks about things we may or may not even
11 ask about today. So he's just done some
12 research and he put it all together in an
13 affidavit.
14 For this point what I would have
15 to say, it goes to credibility. You can see
16 the numbers, and you can take what you will
17 from them.
18 You will see that the ambient
19 readings that he has taken are consistent with
20 the ambient readings of a licensed sound
21 engineer.
22 You will hear that the sound
Neal R. Gross and Co., Inc. 202-234-4433 Page 363 1 engineer said that this type 2 meter that he
2 is using is permitted by the law. We're not
3 submitting these as a proof of a violation,
4 and that this is something that, you know,
5 we're hoping to come away with in that sense.
6 But if you would like to know
7 what, you know, the residents are doing to try
8 to help themselves in the absence of effective
9 law enforcement --
10 MEMBER ALBERTI: Okay.
11 MS. PECK: -- this is what we're
12 doing.
13 MEMBER ALBERTI: Okay, okay, so --
14 MS. PECK: And this is for you to
15 look at.
16 MEMBER ALBERTI: I got you.
17 MS. PECK: Okay.
18 MEMBER ALBERTI: Okay, so Mr.
19 Fonseca, do you have any objections to him
20 testifying to what's there, and I would not
21 rule on your objection until, see I need more
22 information.
Neal R. Gross and Co., Inc. 202-234-4433 Page 364 1 Like you said, we need to
2 understand, and I'm assuming you will get to
3 this, or at least some of the board members
4 will, as to how was this used? What is the
5 equipment, was it calibrated? All those kind
6 of things.
7 So I don't want to rule on your
8 objection until I hear all that. So can we
9 proceed with the testimony? Do you have any
10 objections to proceeding with the testimony?
11 MR. FONSECA: No objections. But
12 if they're going to allow you to see that then
13 I think that you should also see the original
14 Exhibit H, and not the corrected one which is
15 limited to Ozio, which has all of the
16 establishments they were taking readings on to
17 get a comparable --
18 MEMBER ALBERTI: I'll let you
19 submit that at the end as your exhibit.
20 MR. FONSECA: Well it is in their
21 packet, so this H --
22 MEMBER ALBERTI: Oh it is? Well
Neal R. Gross and Co., Inc. 202-234-4433 Page 365 1 I'm understanding it's not in there.
2 MR. NELSON: Let me clarify that.
3 MEMBER ALBERTI: It's not in the
4 packet now.
5 MR. NELSON: The problem with that
6 is we intended to submit both exhibits, but we
7 double number, I mean, we put the same letter
8 on two of them. They're both intended --
9 MEMBER ALBERTI: All right. So
10 you put --
11 (Crosstalk)
12 MEMBER ALBERTI: Ms. Peck, would
13 you like to submit both of them?
14 MS. PECK: That's fine if they're
15 both submitted. We stand behind both of them.
16 MEMBER ALBERTI: Okay, so we'll
17 just have, whatever that is, H(a) and H(b), or
18 whatever.
19 MR. FONSECA: I assume the board
20 has these. I don't want to give up my one
21 set, because I'll need to talk --
22 MEMBER ALBERTI: Well, I'll
Neal R. Gross and Co., Inc. 202-234-4433 Page 366 1 request to have --
2 MS. PECK: Yes, you have them.
3 You'll have them in your own, you know, little
4 set once it's submitted. But for the purposes
5 of this discussion, it might be helpful for
6 you to have this --
7 MEMBER ALBERTI: Okay, let's
8 proceed and then I'll rule as to whether or
9 not we'll --
10 MALE PARTICIPANT: To follow
11 along, you'll probably need to see them.
12 MEMBER ALBERTI: You think so?
13 MS. PECK: I do.
14 MEMBER ALBERTI: Wait, wait, wait.
15 I don't think so. I think we can just --
16 MR. FONSECA: Okay.
17 MS. PECK: Okay.
18 MEMBER ALBERTI: Let's proceed and
19 see how we go with this.
20 MS. PECK: Okay. Why don't you,
21 Mr. Nelson if you would, talk specifically
22 about the visits you've paid to Ozio and what
Neal R. Gross and Co., Inc. 202-234-4433 Page 367 1 the readings were that you took there.
2 MR. NELSON: We visited, we went
3 to the alcove, which has been described in
4 earlier testimony, the driveway behind Ozio,
5 at the base of their eastern wall, directly
6 below the roof deck. And we went there six
7 times.
8 Five of them, we collected data
9 during the bar operating hours. And those
10 numbers are shown, the 71 and the 76, there
11 are five sets of those on different nights.
12 We went one time in the daytime,
13 just to get a early evening when it wasn't
14 operating, what was their real base. And that
15 was 61.
16 And we did go one time into the
17 bar and upstairs to the lounge, I mean to the
18 roof deck, and we measured the inside. We're
19 not really concerned about what's going on in
20 the inside.
21 We're only concerned about what's
22 emanating out, and that was 101, but that
Neal R. Gross and Co., Inc. 202-234-4433 Page 368 1 video hasn't been --
2 MS. PECK: We'll get to that in a
3 minute, just --
4 MR. NELSON: Okay. And then we
5 went to the --
6 MR. FONSECA: I mean, you haven't
7 discerned how you're doing, I object because
8 --
9 MS. PECK: I'm just asking him to
10 go through the process --
11 MEMBER ALBERTI: Yes, well I think
12 Mr. Fonseca, I have to agree with Mr. -- I
13 mean, I'm having trouble. I need to know. I
14 need some basis here. You know. How was this
15 --
16 MALE PARTICIPANT: Organized.
17 MEMBER ALBERTI: Yes. Well, I
18 mean, how are these readings taken? Were they
19 slow? Were they fast? How long did he have
20 the machine? Was it calibrated, because yes,
21 I mean, I'm just struggling here to even
22 believe any of these numbers, or to put any
Neal R. Gross and Co., Inc. 202-234-4433 Page 369 1 credence.
2 I mean, I can hear them, but I
3 can't give them, I personally can't give them
4 much weight because I don't know about this
5 instrument.
6 MS. PECK: Why don't we go into
7 more detail there? We can ask questions about
8 that. Why don't you start by holding up the
9 instrument, talking about what condition it
10 was in when it was provided to you, how it
11 operates, whether it's on the slow or the fast
12 setting. Just give them as much information
13 as you can.
14 MR. NELSON: It was handed to us
15 by the noise construction supervisor at DCRA
16 suggesting we use it to find out what the
17 situation on the ground is in the club central
18 area. We have not calibrated it.
19 We're relying on calibration by
20 DCRA, that it would not need re-calibration.
21 I think from my search in literature the
22 effect of re-calibration does not produce a
Neal R. Gross and Co., Inc. 202-234-4433 Page 370 1 serious number, and what we're looking for
2 here, or what we find is large gaps between
3 groups of numbers.
4 And we don't need type 1, or
5 really accurate numbers. We need to get a
6 rough range of what's the noise in these
7 places. This meter is, the manufacturer says
8 that the accuracy is from 1.4 to 3.6 percent
9 of the rating, in the range of what we expect
10 from the night clubs. Basically 50 hertz up
11 to about 2 kilohertz.
12 MS. PECK: And how do the settings
13 work? How do you, when you are ready to take
14 a setting or reading, what do you do?
15 MR. NELSON: When you use it, you
16 need to set three parameters. Do you want dBa
17 or dBc, which makes a difference about how the
18 lowest frequency noises are handled.
19 What range do you want to read in?
20 So that's just a matter of setting whether you
21 want it to 30 to 80, 50 to 100, or 80 to 130.
22 That's just a matter of picking a dial, which
Neal R. Gross and Co., Inc. 202-234-4433 Page 371 1 number range you expect to do.
2 We always use it on slow because
3 we weren't really interested in instantaneous
4 values. We're interested in what's the
5 general noise level at this spot.
6 MEMBER ALBERTI: Okay.
7 MR. NELSON: That's how we used
8 the meter. And it's true we did not calibrate
9 it. I mean, we accepted DCRA's calibration
10 and left it at that.
11 MEMBER ALBERTI: Mr. Nelson I have
12 to ask, so did you have a consistent, your
13 three range levels for noise --
14 MR. NELSON: Yes.
15 MEMBER ALBERTI: -- right? For
16 levels, did you consistently use one? Or did
17 that vary?
18 MR. NELSON: It depended on what
19 the sound level was. We tried to use the
20 range which would best bracket the sound
21 expected.
22 MEMBER ALBERTI: Okay.
Neal R. Gross and Co., Inc. 202-234-4433 Page 372 1 MS. PECK: Could you explain what
2 that means because you explained that to me
3 yesterday? I didn't know about it.
4 MR. NELSON: If we expect 70 we'd
5 use the one that would go from 50 to 100.
6 MEMBER ALBERTI: Right, right. So
7 when you went inside you used the higher one.
8 MR. NELSON: When we're inside
9 we'd use the 130.
10 MEMBER ALBERTI: Got you.
11 MR. NELSON: Actually, if you
12 tried to read a number off the range it won't
13 give you a number at all.
14 MEMBER ALBERTI: Did you use dBa
15 or dBc?
16 MR. NELSON: I'm sorry, what?
17 MEMBER ALBERTI: Did you use dBa
18 or dBc?
19 MR. NELSON: We used A because the
20 law requires A. I actually tested C, and in
21 my next life in this game, I'll suggest that
22 the problem with dBa is for these low
Neal R. Gross and Co., Inc. 202-234-4433 Page 373 1 frequency noises, we're using the wrong
2 instrument with the wrong set of rules.
3 MEMBER ALBERTI: Okay.
4 MR. NELSON: But that's for the
5 task force. I don't think that has anything
6 to do with this particular --
7 MEMBER ALBERTI: All right. I'm
8 going to overrule the objection, Mr. Fonseca.
9 I think that there is some value here. I
10 recognize that we have a non-expert using a
11 piece of equipment that they don't own.
12 And so, but, just one moment. I
13 think I have a comment from one of my board
14 members. Do you want to discuss it offline
15 Mr. Jones? Or do you want to --
16 MEMBER JONES: Just very quickly.
17 You made the comment that it was a non-expert.
18 Is that based on the fact that he wasn't
19 certified as being --
20 MEMBER ALBERTI: That's right.
21 Right, right, right.
22 MEMBER JONES: Okay.
Neal R. Gross and Co., Inc. 202-234-4433 Page 374 1 MEMBER ALBERTI: He hasn't been
2 certified and I don't think anyone's claimed,
3 I haven't heard anyone claim that he's an
4 expert. I'm not challenging his level of
5 knowledge as an engineer.
6 I'm just technically, in terms of
7 how we view things in the court, you haven't
8 been certified as a sound expert.
9 MEMBER JONES: Thank you for that
10 Mister.
11 MEMBER ALBERTI: You're welcome
12 Mr. Jones. Thank you for that also. Some of
13 these measurements can be viewed relatively.
14 I mean, repeated measurements can be viewed
15 relative to one another. So there may be some
16 probative value here, but the board
17 understands the limitations.
18 So we are going to, I'm going to
19 admit this. So let's proceed. Okay? And I
20 guess, so then, we can see that exhibit if we
21 want to. Why don't you give us the packet?
22 MS. PECK: You want the whole
Neal R. Gross and Co., Inc. 202-234-4433 Page 375 1 packet?
2 MEMBER ALBERTI: Ms. Jenkins, if
3 you could take the packet and then --
4 MS. PECK: Maybe things are that
5 you did not know.
6 MEMBER ALBERTI: Yes. So I, you
7 know.
8 (Off the record comments)
9 MR. FONSECA: It's not? It needs
10 to be then.
11 (Off microphone discussion)
12 MEMBER ALBERTI: Can we get --
13 okay, Ms. Jenkins will make sure that we get
14 copies for our records, but --
15 MR. FONSECA: We have copies of
16 this?
17 MS. PECK: I have one more copy of
18 it. I thought it was in the packets.
19 MEMBER ALBERTI: Okay.
20 MR. FONSECA: Is this, I thought
21 this was --
22 MS. PECK: Well, we had some
Neal R. Gross and Co., Inc. 202-234-4433 Page 376 1 packaging confusion earlier.
2 MEMBER ALBERTI: All right, I
3 think Ms. Jenkins can get copies.
4 (Off the record comments)
5 MR. FONSECA: Yes.
6 FEMALE PARTICIPANT: No, they've
7 got copies. --
8 MS. PECK: Incorrect H. That's
9 the other --
10 MR. FONSECA: Yes, there are, oh
11 no, no. Not the incorrect, yes. But there's
12 also a longer chart. There's two H's behind
13 the tab. Do you have two H's behind the tab
14 there, Sarah?
15 MS. PECK: No, not really, no.
16 MR. FONSECA: I think --
17 MS. PECK: I thought we did.
18 MR. FONSECA: I thought, can we
19 look at one of those?
20 (Off microphone discussion)
21 MS. PECK: Here we go. Here's
22 another copy of it.
Neal R. Gross and Co., Inc. 202-234-4433 Page 377 1 (Off microphone discussion)
2 MS. PECK: You can make copies.
3 FEMALE PARTICIPANT: I'll go make
4 copies.
5 MR. FONSECA: Okay. This time
6 hopefully you've got your page. It's hard, no
7 this is G. What do you think Sarah? No, it's
8 not? So it's not in here. You're right.
9 MEMBER ALBERTI: Okay.
10 MR. FONSECA: Okay.
11 MEMBER ALBERTI: All right. So
12 Ms. Peck, proceed.
13 MS. PECK: Okay. Going back in
14 this chart, if you could just talk about the
15 readings that you took, and how you took the
16 ambient readings.
17 And then I'd like you to focus on
18 the readings that we took on March 8th, 9th,
19 that weekend, which was two weekends ago,
20 because we have videos for that.
21 MR. NELSON: I took all readings
22 the same. I went to the spot. I turned the
Neal R. Gross and Co., Inc. 202-234-4433 Page 378 1 meter on. Got it in the range and I let it
2 run for, first it had to settle down.
3 And then I'd let it run and just
4 watch how it was ranging for two or three
5 minutes, and then record the range. So I'm
6 not testifying to two significant figures on
7 any one, just the rough range.
8 We were only looking for a rough
9 map of what's happening out there. I think
10 the reason we got in this one, in this thing
11 is this coincided with the issuance recycle.
12 So here was a place we could introduce the
13 problem.
14 MS. PECK: So Mr. Nelson, on March
15 8th, or Saturday the 8th of, the morning of
16 the 9th, we went inside of Ozio, and we went
17 to the roof deck at Jefferson, and then we
18 went to the alley. So tell us about what we
19 did and what the numbers were that we took on
20 that occasion.
21 MR. NELSON: We went to the, at
22 the invitation of one of the Jefferson Row
Neal R. Gross and Co., Inc. 202-234-4433 Page 379 1 residents, we went to the Jefferson Row
2 terrace, which is I think, the fifth floor
3 looking out onto Jefferson Place.
4 And we went to the point closest
5 to Ozio, the southeast corner of that deck.
6 And we could clearly see Ozio's lights. And
7 we could hear a lot of music playing. And it,
8 in my estimation, most of that was coming from
9 the Ozio direction.
10 We read the meter. It was 68 to
11 73. And we walked back to the northwest
12 corner of the terrace to get a reading away
13 from this, at least somewhat away.
14 And we've called that ambient, and
15 that was 63. That was looking out basically
16 onto the corner of Jefferson Place and 19th
17 Street.
18 MS. PECK: And then we went to the
19 interior?
20 MR. NELSON: Then we went to the
21 interior, went up to the bar, the roof deck,
22 and read that number of 101.
Neal R. Gross and Co., Inc. 202-234-4433 Page 380 1 MR. FONSECA: Yes, I know this is
2 a little out of order, but since, it might be
3 easier to do objections or absent my ability
4 to query how he was doing the readings here,
5 as opposed to wait until it's all done,
6 because you talk about taking, you did
7 readings on the terrace.
8 MEMBER ALBERTI: All right, all
9 right --
10 MR. FONSECA: Did you get an
11 ambient reading before you went back to then
12 go --
13 MEMBER ALBERTI: Mr. Fonseca, I
14 can imagine that you have lots of questions.
15 MR. FONSECA: It's just --
16 MEMBER ALBERTI: I myself have
17 several questions, so I don't know how --
18 MR. FONSECA: Well I --
19 MEMBER ALBERTI: I just think
20 we're going to have to proceed. I just think
21 we'll have to stay with normal procedures, as
22 cumbersome as they are, and we're just going
Neal R. Gross and Co., Inc. 202-234-4433 Page 381 1 to have to come back to this.
2 MR. FONSECA: Can we at least
3 split it up once we finish with this so that
4 I can cross on that, and then go back?
5 MEMBER ALBERTI: To?
6 MR. FONSECA: If we wait for the
7 hour before I start all my cross, this is
8 going to be really difficult.
9 MEMBER ALBERTI: Put it up to,
10 where do you want to break? After --
11 MR. FONSECA: Well I'm just saying
12 as to, since he, this is kind of key to how
13 he's taking these readings. Maybe once she
14 finishes her direct on everything that was
15 taken on this corrected Exhibit H, I could
16 perhaps ask some questions about that.
17 Limited only to that.
18 MEMBER ALBERTI: Do you have any
19 problems, any objections to that?
20 MS. PECK: I don't have any, no.
21 MR. FONSECA: Okay, thank you.
22 MEMBER ALBERTI: Okay. So we'll
Neal R. Gross and Co., Inc. 202-234-4433 Page 382 1 do it that way. Continue.
2 MS. PECK: Okay, so but can he
3 continue to discuss --
4 MEMBER ALBERTI: You can continue,
5 yes.
6 MS. PECK: All right. So --
7 MEMBER ALBERTI: Please, continue.
8 MS. PECK: -- so you went inside.
9 Into the business and took --
10 MR. NELSON: We went up to the
11 roof deck and did the same thing. Turned the
12 meter on and recorded the number.
13 MS. PECK: And where were you
14 standing?
15 MR. NELSON: I was standing close
16 to the disc jockey. I don't know exactly
17 where the speaker was, but I was next to the
18 disc jockey.
19 MS. PECK: And where was the, was
20 the roof open?
21 MR. NELSON: The roof was open. I
22 counted, there were I think 12 panels on the
Neal R. Gross and Co., Inc. 202-234-4433 Page 383 1 roof. One of them was open.
2 MS. PECK: Okay, and then --
3 MR. NELSON: That was about, oh I
4 don't know, 40 feet, 30 feet from the point
5 where I had the meter up to the open roof, was
6 I don't, 30, 40 feet.
7 MS. PECK: Okay. And then we took
8 a meter reading in the alley. Is that,
9 finally, is that correct?
10 MR. NELSON: We done that before.
11 MS. PECK: We had done it before?
12 Okay. All right, so I'll turn it over to you.
13 MEMBER ALBERTI: Okay. I'm going
14 to keep you very focused Mr. Fonseca.
15 MR. FONSECA: No, no, no.
16 MEMBER ALBERTI: This way I'm --
17 MR. FONSECA: I'm going to --
18 MEMBER ALBERTI: Please.
19 MR. FONSECA: Let's just verify,
20 that's where I'm going to start, here. Did
21 you take the readings in the alcove, which
22 we'll ask what that is better in a moment,
Neal R. Gross and Co., Inc. 202-234-4433 Page 384 1 first, or on the Jefferson Road terrace first?
2 MR. NELSON: The times are there.
3 The alcove was at 12:30 a.m. The Jefferson
4 terrace was 12:45, and the interior was at
5 1:45.
6 MR. FONSECA: All right. I see a
7 bunch of different times. So we're just
8 looking now on your March 9th, which you had,
9 okay.
10 (Crosstalk)
11 MR. FONSECA: I see that now. So
12 all these are March 9th you're talking about?
13 MR. NELSON: Yes.
14 MR. FONSECA: Okay. So the alcove
15 is at 12:30 and the interior, okay then you
16 went to the terrace. So here's my first
17 question then.
18 When you took the sound, where is
19 this alcove? I know note A is supposed to
20 describe it, but can you?
21 MR. NELSON: There is an east,
22 okay.
Neal R. Gross and Co., Inc. 202-234-4433 Page 385 1 MR. FONSECA: But I asked you
2 where --
3 MR. NELSON: The question is where
4 is the alcove?
5 MR. FONSECA: Yes, yes.
6 MR. NELSON: There is an east-west
7 alley that runs parallel to M Street, between
8 M and Jefferson Place. It runs as Anne Kappel
9 says, up to the back of 18th Street Lounge, or
10 the back of the things facing onto 18th
11 Street.
12 Before you get just near the east
13 end of that there is a driveway that runs
14 along the Ozio's west wall. Runs along west
15 wall. We stood in that alcove, we were
16 probably about five feet --
17 MALE PARTICIPANT: East wall.
18 MR. NELSON: -- because there were
19 cars parked there, we were five feet, we were
20 on the west side of that alcove. So we were
21 at the base of the wall, about five feet off
22 the wall.
Neal R. Gross and Co., Inc. 202-234-4433 Page 386 1 MR. FONSECA: Okay, and where is
2 that in relationship to 18th Street Lounge?
3 MR. NELSON: 18th Street Lounge
4 is, finish going up the alley, turn left and
5 it's about 50 feet up there.
6 (Off microphone conversation)
7 MR. FONSECA: Okay. All right so
8 you're behind the building. This is where
9 you're calling this alcove. All right.
10 MR. NELSON: Yes.
11 MR. FONSECA: So you're taking
12 this reading, and is that where the roof is
13 open? Or is the roof recessed farther at that
14 point?
15 MR. NELSON: Couldn't tell.
16 MR. FONSECA: Couldn't tell.
17 Okay.
18 MR. NELSON: Can't see that part
19 of the roof from that point. I couldn't.
20 MS. PECK: But you could see what
21 it looked like, and from the Jefferson roof --
22 MEMBER ALBERTI: Wait, wait, Ms.
Neal R. Gross and Co., Inc. 202-234-4433 Page 387 1 Peck. Ms. Peck I'm trying to keep some, I'm
2 trying --
3 MS. PECK: I'm just trying to --
4 MEMBER ALBERTI: I understand, I
5 understand --
6 MS. PECK: I'm sorry. I'm sorry.
7 MEMBER ALBERTI: -- but it's going
8 to get, we're already --
9 MS. PECK: Fair enough.
10 MEMBER ALBERTI: -- we're already
11 very --
12 MR. FONSECA: All right.
13 MEMBER ALBERTI: -- free from
14 procedures here.
15 MR. FONSECA: All right. So now
16 we're at the terrace. You've got two
17 readings. I'm trying to understand, this is
18 when you said you were up there, most of the
19 noise was coming from Ozio. That was your
20 statement.
21 MR. NELSON: That was my, that's
22 only a judgment call. I'm not making a firm
Neal R. Gross and Co., Inc. 202-234-4433 Page 388 1 --
2 MR. FONSECA: Understood, but that
3 --
4 MR. NELSON: -- claim as to any
5 specific degree. That's just my, because all
6 of these are simply the measurements. I make
7 no claim about the source of any of the noise.
8 MR. FONSECA: But that's important
9 because you're claiming these readings are now
10 Ozio's sound measurements --
11 MR. NELSON: No, no --
12 MR. FONSECA: -- and not 18th
13 Street Lounge's sound measurements.
14 MR. NELSON: No, I'm claiming that
15 I took those at that point. I took these
16 measurements at that point, as close as I
17 could get to Ozio's.
18 MR. FONSECA: No, I'm now on the
19 terrace. Now I'm now on the Jefferson road --
20 MR. NELSON: On the terrace --
21 MR. FONSECA: -- terrace.
22 MR. NELSON: -- I did the same
Neal R. Gross and Co., Inc. 202-234-4433 Page 389 1 thing. I took the readings.
2 MR. FONSECA: But at the same time
3 you're saying it was the most noise. So how
4 do you, let me, here's the point.
5 When you take the ambient reading,
6 which has no deed,
7 you now go away from the noise to point it at
8 19th Street, and that seems to make no sense
9 if you're really trying to see what's the
10 ambient sound, which really should be without
11 the music.
12 MR. NELSON: Okay.
13 (Crosstalk)
14 MR. FONSECA: So I don't know how
15 you have that as a point --
16 MR. NELSON: I'm reporting, I'm
17 reporting here what I did.
18 MR. FONSECA: Okay.
19 MR. NELSON: I'm not making an
20 interpretation of it.
21 MR. FONSECA: All right. So at
22 the time you took these tests, was there music
Neal R. Gross and Co., Inc. 202-234-4433 Page 390 1 coming from 18th Street Lounge, to the best of
2 your knowledge?
3 MR. NELSON: There was, 18th
4 Street Lounge was visible. There was sound,
5 quite a bit of sound coming from that
6 direction. I couldn't tell, I know that 18th
7 Street Lounge is over to my left, Public is
8 over to my left.
9 I know that, but I didn't, it just
10 appeared to me, roughly, as a human judgment,
11 where was the majority of the sound coming
12 from, and I would say from the southeast where
13 I could see.
14 MR. FONSECA: Okay.
15 MR. NELSON: Ozio's.
16 MR. FONSECA: That takes care of
17 that.
18 MEMBER ALBERTI: All right. Thank
19 you, Mr. Fonseca.
20 MR. FONSECA: Thank you.
21 MEMBER ALBERTI: Ms. Peck, please
22 continue.
Neal R. Gross and Co., Inc. 202-234-4433 Page 391 1 MS. PECK: Mr. Nelson, you looked
2 at the Ozio engineer's sound report, right?
3 Do you recall that report? Did you have a
4 chance to look at it?
5 MR. NELSON: I did.
6 MS. PECK: Do you recall what the
7 ambient reading was, what they took on the
8 Jefferson terrace roof deck?
9 MR. NELSON: No. You can refresh
10 my memory with the document.
11 MS. PECK: Right. I was now
12 trying to pull out the document. Relying on
13 that snap memory, it didn't --
14 MR. FONSECA: Mr. Nelson, you sure
15 you haven't done this before?
16 MALE PARTICIPANT: Scientist.
17 (Off microphone discussion)
18 MR. NELSON: When it comes to
19 believing what I say about --
20 MEMBER ALBERTI: Whoa, whoa, whoa
21 Mr. Nelson --
22 MR. NELSON: -- what you have to
Neal R. Gross and Co., Inc. 202-234-4433 Page 392 1 hear --
2 MEMBER ALBERTI: -- We really, Mr.
3 Nelson, Mr. Nelson, Mr. Nelson --
4 MR. NELSON: -- first two years of
5 my daughter's --
6 MEMBER ALBERTI: -- Mr. Nelson,
7 Mr. Nelson, please, please, please. I'm
8 trying to keep some order here. You know, I
9 know you have lots to say, but we really need
10 to have that question answered.
11 (Off microphone conversation)
12 MR. NELSON: Which are you,
13 background ambient outdoor terrace is 62.
14 MS. PECK: So your readings were
15 in the neighborhood of what the sound engineer
16 got in both of the ambient locations that you
17 took.
18 MR. NELSON: My reading was 63.
19 MS. PECK: I would like to do
20 something, I'd like to admit some evidence
21 that I am sure we're going to have lots of
22 fight about, so let me just propose this and
Neal R. Gross and Co., Inc. 202-234-4433 Page 393 1 we can decide how we want to handle this.
2 We did take video footage of these
3 three locations. One of them is frozen on the
4 screen right here. We do have them on a disc
5 that we can submit as evidence. They're also
6 been provided to you in links to our website.
7 They're very short. They will
8 simply give you a flavor, since we obviously
9 are not going to hear the same sound level in
10 this room, with this equipment.
11 But it will show you if you choose
12 to view them the kind of sound that's being
13 played, was played that night by a DJ on March
14 8th under the open roof. You will see the
15 changing meter, you can see that it's
16 functional.
17 And the one that was taken on
18 Jefferson Road terrace, this is the terrace
19 that Anne was speaking about. You can direct
20 line of vision. You can see the open roof.
21 You could see people mingling
22 around. You can hear distinctive sound from
Neal R. Gross and Co., Inc. 202-234-4433 Page 394 1 it. So if you would like, I would like to
2 introduce these as evidence that you can view,
3 And I'm sure we're going to have an objection.
4 MEMBER ALBERTI: Okay. Mr.
5 Fonseca?
6 MR. FONSECA: She is correct.
7 MEMBER ALBERTI: And your
8 objection?
9 MR. FONSECA: Well we do object
10 for a couple of reasons. You testified that,
11 your notes, that the measurement that you see
12 here with this 101, it's there as 101.8, was
13 at an area it says was by the DJ, which I
14 could have Mr. Christacos testify to, which is
15 immediately next to the DJ is the speaker and
16 the sub-woofer, which would be the point where
17 you're going to get possibly the loudest
18 levels of noise
19 And if you are going now show a
20 video that's going to be basically having a
21 microphone right next to a speaker, it's going
22 to be incredibly prejudicial and not
Neal R. Gross and Co., Inc. 202-234-4433 Page 395 1 representative of what's in the middle of the
2 room, what's at the far end of the room, and
3 it's just, you know. That's my objection.
4 MEMBER ALBERTI: And so it's to
5 that piece of video. We have two other pieces
6 of video.
7 MR. FONSECA: I would have to look
8 at those again, recall what they were.
9 MEMBER ALBERTI: Okay, so with
10 this piece of video, what's the value for us?
11 I mean, what's the purpose of showing, we have
12 the reading Ms. Peck. It's there, I have it
13 on this piece of paper.
14 You've told us where in the
15 establishment it is, and I'm sure Mr. Fonseca
16 is going to enlighten us even more as to where
17 that position is. And so what's its purpose?
18 MS. PECK: The purpose for this
19 one is that you can hear the kind of pounding,
20 grating, technical, mechanical sound that is
21 coming right out of the roof that's right
22 ahead.
Neal R. Gross and Co., Inc. 202-234-4433 Page 396 1 You can see the layout of the
2 rooftop we've been talking about. And you
3 can, I think it informs you as to the kind of
4 operation, because what we're trying, what I
5 understand we're supposed to be talking about
6 is appropriateness.
7 So the question will be is this
8 kind of music, is this kind of set up, is
9 these kinds of sound levels, all of these
10 things, are these the kinds of things that
11 are, you know, in a protest setting, maybe I
12 don't understand what we're doing here today,
13 but I think we're trying to talk about how all
14 of this fits into the community, whether this
15 is appropriate activity to be in our
16 community.
17 So it's, you've now heard what you
18 will see. You can even choose to see it and
19 then decide not to accept it if you wish. The
20 second one, on Jefferson Road --
21 MEMBER ALBERTI: Okay, well let's
22 just stay with this one because --
Neal R. Gross and Co., Inc. 202-234-4433 Page 397 1 MS. PECK: Okay, very well.
2 MEMBER ALBERTI: I'm having
3 trouble here because I don't know that the
4 nature of the music really matters to me. I
5 mean, the volume does, but you know, whether
6 it's country or disco I don't really care.
7 And so I don't know what it, I'm
8 still kind of struggling what is shows me.
9 Mr. Jones?
10 MEMBER JONES: I'm very interested
11 in hearing the nature of the music, because
12 based on the testimony you all provided
13 earlier, the nature of the music does have an
14 impact on how it is received.
15 MEMBER ALBERTI: What is the
16 quality, I think we are talking about, just to
17 be clear, I think, what qualities would be of
18 importance about the music for you to know?
19 MEMBER JONES: Frequency. Like, a
20 lower range or higher range.
21 MEMBER ALBERTI: Okay.
22 MEMBER JONES: And that's just
Neal R. Gross and Co., Inc. 202-234-4433 Page 398 1 based on the direct testimony that was
2 provided by the Licensees.
3 MEMBER ALBERTI: And you believe
4 that the video is going to provide enough
5 information on that for you?
6 MEMBER JONES: I can't possibly
7 answer that question.
8 MEMBER ALBERTI: Okay, okay. I
9 will, we'll accept this for what it's worth.
10 I'm doubtful it's going to be helpful, but we
11 will accept it. And now the other two videos?
12 MS. PECK: Okay, the second one is
13 a, it was taken on the corner of the terrace,
14 of the Jefferson Row roof deck. Anne Kappel
15 testified, that's the roof deck that I
16 believe, that her apartment looks out onto.
17 So you've heard about it in
18 testimony today. And we took the video from
19 the point that you could literally stand as
20 close as you could to Ozio.
21 So you can see the line of sight.
22 You can see, you can judge for yourself
Neal R. Gross and Co., Inc. 202-234-4433 Page 399 1 whether you hear competing noise. And in
2 fact, you know, obviously there is competing
3 noise out there, that's part of the big
4 problem with all of this.
5 But you actually can distinctly
6 hear, in this video, that Ozio's, sort of what
7 Anne Kappel was testifying about. That you
8 actually can tell which of these
9 establishments it appears that the music is
10 coming from.
11 MEMBER ALBERTI: Okay and the
12 third one?
13 MS. PECK: The third one is one
14 that I'm less passionate about presenting, but
15 I'm happy to. That one is the one that's
16 taken in the alcove.
17 From there you can look up and you
18 can see the distance up to the roof. So I
19 believe this the place also where the sound
20 engineer was taking his measurements as well.
21 So you can just get a sense of,
22 but all you see is roof and then it kind of
Neal R. Gross and Co., Inc. 202-234-4433 Page 400 1 goes down into the darkness. So it doesn't
2 show a lot visually, but I'm happy to show it
3 to you --
4 MEMBER ALBERTI: Okay.
5 MS. PECK: -- if you would like to
6 see it.
7 MEMBER ALBERTI: Mr. Fonseca,
8 objections to those two pieces of video?
9 MR. FONSECA: I'm not sure if it's
10 going to get me anywhere. I'll just leave it
11 as a standing objection. And I don't know
12 that this is exactly the same place.
13 I believe the sound engineer was
14 taking it in the west side of, being in the
15 alley, was on western, did you say, he did say
16 the rear.
17 MALE PARTICIPANT: He took from
18 all locations. Mostly it was --
19 MEMBER ALBERTI: We have his
20 testimony. We can look at it. I think I, I
21 understand. I'm a little, it may have been a
22 slightly different location.
Neal R. Gross and Co., Inc. 202-234-4433 Page 401 1 MALE PARTICIPANT: -- on the side
2 not the back end.
3 MEMBER ALBERTI: I understand
4 that. I'll note that. But so your objection
5 is noted. But we will take these into
6 evidence now. So do we want to show them now?
7 MR. FONSECA: Are we going to view
8 all three now?
9 MEMBER ALBERTI: Let's just view
10 all three. Let's do this.
11 MS. PECK: So the next question is
12 can you see these, or do we need to have you
13 turn around, or I'm not sure how this works.
14 MEMBER ALBERTI: When, you have it
15 hooked up on, and you're going to show it off
16 of your laptop?
17 MS. PECK: Yes, and you can see
18 here on these two monitors here which are --
19 MEMBER ALBERTI: But you --
20 (Crosstalk)
21 MS. PECK: You have it? Okay,
22 very good. All right.
Neal R. Gross and Co., Inc. 202-234-4433 Page 402 1 MALE PARTICIPANT: We're getting
2 hi-tech here.
3 MS. PECK: All right. All right,
4 so the question is am I hi-tech enough to do
5 this? Let's see.
6 MR. FONSECA: That's always a
7 problem.
8 (Off microphone discussion)
9 MALE PARTICIPANT: After all that.
10 (First video playing)
11 MEMBER ALBERTI: Oops.
12 MS. PECK: That's it.
13 MEMBER ALBERTI: Oh.
14 MS. PECK: So these are all very
15 short.
16 MEMBER ALBERTI: Okay.
17 MS. PECK: Would you like to see
18 it again? Or is that sufficient?
19 MEMBER ALBERTI: Does anyone want
20 to see it again?
21 MEMBER JONES: I saw one on one.
22 MEMBER ALBERTI: Okay. We're
Neal R. Gross and Co., Inc. 202-234-4433 Page 403 1 fine. Go ahead.
2 MS. PECK: Okay.
3 MEMBER ALBERTI: Second one.
4 MS. PECK: All right now. We will
5 play the second one.
6 (Second video playing)
7 MEMBER ALBERTI: Minimize. Yes.
8 MS. PECK: Oh.
9 MEMBER ALBERTI: Yes, you can
10 start this again. You can start this again
11 and maximize it.
12 (Off microphone discussion)
13 MALE PARTICIPANT: Yes, there you
14 go.
15 MEMBER ALBERTI: There you go.
16 MALE PARTICIPANT: Rewind.
17 MEMBER ALBERTI: And rewind.
18 MS. PECK: All right. Wow.
19 MEMBER ALBERTI: It should bring
20 back. There you go.
21 MS. PECK: Okay, so that blue area
22 you see there is you're looking out from the
Neal R. Gross and Co., Inc. 202-234-4433 Page 404 1 terrace over the alley areas to Ozio there.
2 MR. FONSECA: We'll concede that
3 even though it's testimony.
4 (Second video played again)
5 MS. PECK: The, as we did with all
6 of our other exhibits, it looks like we put
7 the wrong version in here. There's another
8 version that you have a link to on the exhibit
9 pack, which actually shows the noise meter in
10 it. This was taken right before or right
11 after that.
12 MEMBER ALBERTI: Okay. This will
13 be what's in evidence.
14 MS. PECK: The idea is there
15 anyway.
16 MEMBER ALBERTI: But you know this
17 is what will be in evidence.
18 MS. PECK: Yes. And let's see.
19 There we go. So again, how do I --
20 (Off microphone discussion)
21 (Third video played)
22 MEMBER ALBERTI: Okay, let's
Neal R. Gross and Co., Inc. 202-234-4433 Page 405 1 restart it over.
2 MALE PARTICIPANT: All right.
3 MS. PECK: All right. Thank you
4 for your forbearance. I appreciate it.
5 MALE PARTICIPANT: Put it in
6 there.
7 MS. PECK: And so you will be
8 looking up at the roof.
9 MEMBER ALBERTI: Just for the
10 record. We're really on the, if I have my
11 directions right, we're on the east side of
12 the building, right?
13 MR. FONSECA: Actually, they're in
14 the rear.
15 MR. NELSON: West side.
16 MR. FONSECA: On the west side of
17 the building.
18 MEMBER ALBERTI: But where are we?
19 But now wait.
20 MR. FONSECA: On the rear and then
21 there's a little alcove on the --
22 MEMBER ALBERTI: Wait, wait, wait.
Neal R. Gross and Co., Inc. 202-234-4433 Page 406 1 So Mr. Nelson, can you tell us where we are?
2 MR. NELSON: You're on the west
3 side of the back half of Ozio's building.
4 MEMBER ALBERTI: I don't know. So
5 we're --
6 MR. NELSON: Looking --
7 MEMBER ALBERTI: We're on the back
8 --
9 MR. NELSON: Looking up, east.
10 MEMBER ALBERTI: Okay wait, wait,
11 wait. So we're on the back of --
12 MR. NELSON: -- of the east up to
13 the --
14 MEMBER ALBERTI: Okay.
15 MR. NELSON: -- roof deck.
16 MEMBER ALBERTI: So we're on the
17 south, we're basically at the southwest corner
18 of --
19 MR. NELSON: North, you're at the
20 northwest corner.
21 MEMBER ALBERTI: You're right, I'm
22 sorry. You're at the northwest corner of
Neal R. Gross and Co., Inc. 202-234-4433 Page 407 1 Ozio's, right there.
2 MR. NELSON: Yes.
3 MEMBER ALBERTI: Okay. Now I
4 understand.
5 (Third video played again)
6 MS. PECK: This, also not the
7 correct --
8 (Third video continued)
9 MEMBER ALBERTI: Okay. Thank you.
10 MS. PECK: So from the standpoint
11 of actually admitting these videos, have I
12 established enough information --
13 MEMBER ALBERTI: We're going to
14 admit it. We'll admit this video. So this
15 becomes, I guess, you're lettering your
16 exhibits so this now is being L. This would
17 be M, I think. Is that correct? Protestant's
18 Exhibit M? The last one in your packet is L.
19 MR. NELSON: The video is that
20 one.
21 MS. PECK: The videos actually
22 have letters already. The first --
Neal R. Gross and Co., Inc. 202-234-4433 Page 408 1 MR. NELSON: They're in the PIF.
2 MS. PECK: Yes, so --
3 MEMBER ALBERTI: Well your packet
4 goes to L.
5 MS. PECK: Yes, so B --
6 MR. FONSECA: Exhibit H is
7 dropped.
8 MS. PECK: -- is the clip on the
9 dance floor. Exhibit B.
10 MEMBER ALBERTI: All right. Then
11 --
12 MS. PECK: If we want to do it the
13 way it's marked in the packet.
14 MEMBER ALBERTI: No that, yes,
15 that's the time. We're talking about the
16 video itself.
17 MS. PECK: So the Exhibit B in the
18 packet is the, basically the image of being
19 inside, and it gives you a link to a website.
20 Exhibit D --
21 MEMBER ALBERTI: Wait, wait, wait.
22 I'm not even finding the exhibit. Oh boy.
Neal R. Gross and Co., Inc. 202-234-4433 Page 409 1 MS. PECK: So in the packet,
2 Exhibit B, see that?
3 MEMBER ALBERTI: I see Exhibit C.
4 So there's other stuff in this packet, right?
5 MS. PECK: Right.
6 MEMBER ALBERTI: Besides exhibits?
7 MS. PECK: Yes, in the --
8 MEMBER ALBERTI: I see Exhibit A.
9 I see Exhibit B.
10 MS. PECK: Right.
11 MEMBER ALBERTI: Okay, so you
12 want?
13 MS. PECK: So that could be the --
14 MEMBER ALBERTI: Why don't we make
15 the video, all together, all three of them --
16 MS. PECK: B?
17 MEMBER ALBERTI: -- Exhibit B.
18 MS. PECK: We could do that.
19 Absolutely.
20 MEMBER ALBERTI: Is that okay?
21 MS. PECK: Yes.
22 MEMBER ALBERTI: Mr. Fonseca, any
Neal R. Gross and Co., Inc. 202-234-4433 Page 410 1 problems with that?
2 MR. FONSECA: Yes, just a little
3 note that Exhibit D is the image of --
4 MEMBER ALBERTI: Exhibit B is the
5 image of one of the screens of the first
6 video.
7 MR. FONSECA: That would subsume
8 then what is now the image in Exhibit D, which
9 is also a video --
10 (Crosstalk)
11 MR. FONSECA: -- which I believe is
12 the terrace shot. And I don't know where the
13 --
14 MEMBER ALBERTI: Are all shots of
15 those just part of separate exhibits in here?
16 MS. PECK: Yes.
17 MR. FONSECA: I'm not sure where
18 the one is for the alcove reading.
19 MEMBER ALBERTI: The alcove
20 reading is where, Ms. Peck?
21 MS. PECK: Is that K? Let's see.
22 MR. FONSECA: Yes.
Neal R. Gross and Co., Inc. 202-234-4433 Page 411 1 MS. PECK: It's K.
2 MR. FONSECA: Is that what it is
3 then?
4 MS. PECK: It's K.
5 MR. FONSECA: Okay.
6 MEMBER ALBERTI: Okay, so let it
7 be understood that --
8 MR. FONSECA: So it subsumes --
9 MEMBER ALBERTI: -- we have three
10 videos, and they are labeled --
11 MALE PARTICIPANT: Video 1, 2, and
12 3.
13 MEMBER ALBERTI: No, they're
14 labeled Exhibit B, D and K?
15 MS. PECK: B, D, and K.
16 MEMBER ALBERTI: Right. And your
17 packet has a description of what is on each
18 video, I see, right?
19 MS. PECK: Yes.
20 MEMBER ALBERTI: Yes. And just
21 for the record, the board will ignore these
22 links, because we can't look at that evidence.
Neal R. Gross and Co., Inc. 202-234-4433 Page 412 1 It's not in evidence today. Mr. Fonseca
2 hasn't seen it --
3 MS. PECK: But we do have it.
4 MR. FONSECA: Yes.
5 MEMBER ALBERTI: Just for the
6 record the links that are on these, in this
7 packet will be, on those pages, will be
8 ignored.
9 MR. FONSECA: Will they be erased
10 from everyone's memory?
11 MEMBER ALBERTI: Well we're not
12 going to it.
13 MR. FONSECA: I know, I'm --
14 MEMBER ALBERTI: You have to trust
15 us not to go to it Mr. Fonseca.
16 MR. FONSECA: It's getting late
17 and I'm getting a little weary.
18 MS. PECK: I have no further
19 questions for Mr. Nelson.
20 MEMBER ALBERTI: Okay.
21 MR. FONSECA: I do.
22 MEMBER ALBERTI: Mr. Fonseca.
Neal R. Gross and Co., Inc. 202-234-4433 Page 413 1 MR. FONSECA: I do. Now that we
2 have, and I think the general counsel should
3 have given you the longer version of Exhibit
4 H. I'm going to --
5 MEMBER ALBERTI: Did you want that
6 to be your exhibit?
7 MR. FONSECA: Yes. That will now
8 become my exhibit --
9 MEMBER ALBERTI: Five?
10 MR. FONSECA: -- 5, I believe.
11 MEMBER ALBERTI: Okay. Any
12 objections Ms. Peck, since you created it?
13 MS. PECK: No problem.
14 (Off microphone discussion)
15 MR. FONSECA: All right. Mr.
16 Nelson, maybe we can do some relevant
17 comparisons looking at what is now marked at
18 the bottom, not on yours, Applicant Exhibit 5,
19 but at the top it was your original Exhibit H,
20 chart of night club noise. You have that in
21 front of you correct?
22 MR. NELSON: Yes.
Neal R. Gross and Co., Inc. 202-234-4433 Page 414 1 MR. FONSECA: Can you go over, all
2 these seem to have been done on the same day.
3 Is that correct?
4 MR. NELSON: The days that are
5 reported there are the days that I did the
6 measurements.
7 MR. FONSECA: Okay, so most of
8 them, when you did your baseline was on
9 November 29, except for the N Street at alley
10 opening, which is the very last reading, which
11 would be the very first row of readings. Is
12 that correct?
13 MR. NELSON: Yes. This chart
14 reflects all the --
15 MR. FONSECA: Okay. And I note,
16 and the board should be able to see, that
17 every establishment here, which are one, two,
18 three, four, five, six, seven, eight, well
19 there's two, four, six, eight, there's nine.
20 Some of the establishments have
21 front and alley. So there aren't nine
22 establishments, but there's at least nine
Neal R. Gross and Co., Inc. 202-234-4433 Page 415 1 categories. Ozio has no reading as a baseline
2 in their alley or front. All the others do.
3 Is that correct?
4 MR. NELSON: Yes.
5 MR. FONSECA: Okay. Then when you
6 got a baseline with traffic before music,
7 everyone has that, and it appears those were
8 all taken on November 22nd.
9 MR. NELSON: They were taken on
10 whatever day is written there.
11 MR. FONSECA: Okay. And then the,
12 I'm just trying to confirm what these
13 categories, so then the next one is the night
14 club music, time and date. And --
15 MR. NELSON: Those are all, you
16 notice that --
17 MR. FONSECA: There are a couple
18 of dates, being either 23rd of November or the
19 24th, and the times are there. And they
20 actually --
21 MR. NELSON: They're all in the
22 early morning, whereas baseline two is all at
Neal R. Gross and Co., Inc. 202-234-4433 Page 416 1 10:00 p.m. kind of time.
2 MR. FONSECA: Thank you clarifying
3 that. So these are all pretty close to
4 midnight or after, and in the early morning.
5 MR. NELSON: Yes.
6 MR. FONSECA: Because I know, like
7 18th Street Lounge, it looks like it was at
8 2:10 a.m. on the 24th. Now if you can help
9 me, this difference between baseline two, and
10 that's a plus four. This is the label, +4 dB
11 equals violation. I mean, did you prepare
12 this?
13 MR. NELSON: I did not prepare
14 that column.
15 MR. FONSECA: Do you know who did
16 prepare that?
17 MR. NELSON: I'll ask Ms. Peck.
18 MS. PECK: That would be me.
19 MR. FONSECA: Okay.
20 MS. PECK: And I can tell you
21 there is a later version of this chart that
22 says alleged violation.
Neal R. Gross and Co., Inc. 202-234-4433 Page 417 1 MR. FONSECA: I appreciate that.
2 I guess the point I'm trying to look at is, if
3 we start to compare these alleged violations,
4 it would appear that, to me, that Ozio, which
5 never got a baseline, quiet baseline, but
6 Ozio's is arguably two to six violation, and
7 it is the lowest one here.
8 MEMBER ALBERTI: Yes.
9 MR. FONSECA: Although Public Bar
10 front has one, but it could be up to 13. 18th
11 Street Lounge one, but up to ten, meaning that
12 would be the decibel increases between the
13 gaps of the readings. Is that how it was
14 supposed to read that, Mr. Nelson?
15 MR. NELSON: I didn't prepare that
16 column.
17 MR. FONSECA: Oh, well that's very
18 helpful. Well I'm going to leave this
19 hopefully --
20 MR. NELSON: I took all the
21 readings reported here.
22 MEMBER ALBERTI: You took all the
Neal R. Gross and Co., Inc. 202-234-4433 Page 418 1 readings reported here?
2 MR. NELSON: Yes.
3 MEMBER ALBERTI: But you didn't
4 prepare the table?
5 MR. NELSON: I put the numbers
6 into the table, yes. I did not complete, I
7 did not do the right most column, the
8 calculations with the violet, I did not do
9 that.
10 MEMBER ALBERTI: So I'm just
11 trying to understand your answer to Mr.
12 Fonseca's question, baseline two. Did you
13 take those readings?
14 MR. NELSON: Yes, I took all the
15 readings on this chart.
16 MEMBER ALBERTI: Okay. So when
17 you said you didn't prepare that, Mr. Fonseca
18 what was your question? I thought it was
19 with respect to baseline two?
20 MR. FONSECA: Yes, I was just
21 noting that --
22 MEMBER ALBERTI: Okay, --
Neal R. Gross and Co., Inc. 202-234-4433 Page 419 1 MR. FONSECA: -- let's just walk
2 through this.
3 (Crosstalk)
4 MEMBER ALBERTI: -- because I
5 think there's some confusion. Mr. Nelson,
6 baseline two. You took those readings?
7 MR. NELSON: I did.
8 MEMBER ALBERTI: Have you seen
9 this chart?
10 MR. NELSON: Have I seen this
11 chart?
12 MEMBER ALBERTI: Yes.
13 MR. NELSON: Yes.
14 MEMBER ALBERTI: Are those
15 readings, to the best of your knowledge, are
16 those readings the readings that you took in
17 --
18 MR. NELSON: Yes.
19 MEMBER ALBERTI: -- column --
20 MR. NELSON: Yes.
21 MEMBER ALBERTI: -- column
22 baseline two? Okay. Hopefully that's helpful
Neal R. Gross and Co., Inc. 202-234-4433 Page 420 1 to you Mr. --
2 MR. FONSECA: Yes, yes. No, and
3 night club music, which would mean, baseline
4 two is with traffic before music begins. You
5 took those readings. Correct?
6 MR. NELSON: I took all the
7 readings on the chart.
8 MR. FONSECA: So baseline one,
9 baseline two, and night club music, those
10 columns, you took all those readings?
11 MR. NELSON: I did.
12 MR. FONSECA: Those are to your
13 recollection --
14 MR. NELSON: Yes.
15 MR. FONSECA: -- the readings you
16 took? Okay. And you did not create the chart
17 that has the difference, which is the column
18 to the rightmost?
19 MR. NELSON: I did not do the
20 rightmost column, no.
21 MR. FONSECA: I would just note,
22 based on an observant eye, that the range, of
Neal R. Gross and Co., Inc. 202-234-4433 Page 421 1 all of these locations, Ozio has the least
2 deficit, shall I say.
3 MEMBER ALBERTI: We'll get that in
4 your closing.
5 MR. FONSECA: We'll take it in
6 closing, but I wanted to make sure I asked
7 this. He admitted --
8 MEMBER ALBERTI: Sure, it's
9 admitted. It's admitted.
10 MR. FONSECA: -- the same
11 circumspectants that the board may have for --
12 MEMBER ALBERTI: Mr. Fonseca.
13 MR. FONSECA: -- any of the others
14 and I thank Mr. Nelson for that. Mr. Nelson,
15 because I'm not sure what other witnesses
16 there are, but so far you've only testified to
17 noise, but you own your apartment. Are you of
18 the belief that Ozio's is causing negative
19 impact on your low property value?
20 MR. NELSON: That requires an
21 opinion of the witness I believe. The answer
22 is wrapped up in not my belief, but the idea
Neal R. Gross and Co., Inc. 202-234-4433 Page 422 1 that it's entirely credible that the numbers,
2 that the problems our residents are having
3 with noise from music is coming from, part of
4 it could be coming from Ozio.
5 But the problem is, as I referred
6 to earlier, is that we're using the wrong
7 measurement with the wrong instrument to
8 determine that. So based on my, what I've
9 concluded from my research in that topic, it's
10 possible.
11 MR. FONSECA: It's possible. I
12 mean, are you aware that that's one of the two
13 appropriateness standards that the protest is
14 based on? Negative effect on real property
15 values?
16 MR. NELSON: Yes.
17 MR. FONSECA: So you feel that
18 Ozio's is causing a negative effect on your
19 real property value?
20 MR. NELSON: I feel that is
21 possible.
22 MR. FONSECA: Possible.
Neal R. Gross and Co., Inc. 202-234-4433 Page 423 1 MR. NELSON: That Ozio could be a
2 contributor to this. And under the present
3 standards that the city is using, we'll never
4 be able to determine it. And all it would be
5 is my opinion.
6 MR. FONSECA: Have you had your
7 property valued other than by the Office of
8 Tax and Government?
9 MR. NELSON: No.
10
11 MR. FONSECA: Have you seen your
12 most recent proposed new assessment value from
13 the Office of Tax and Revenue?
14 MR. NELSON: No.
15 MR. FONSECA: Would it surprise you
16 that it increased from last year's actual
17 assessment?
18 MR. NELSON: It wouldn't surprise
19 me.
20 MALE PARTICIPANT: Yes.
21 MEMBER JONES: You have three
22 minutes left.
Neal R. Gross and Co., Inc. 202-234-4433 Page 424 1 MEMBER ALBERTI: You have three
2 minutes left.
3 MR. FONSECA: I have three minutes
4 and then I'll leave it alone. I think I'm
5 done.
6 MEMBER ALBERTI: Okay. Board
7 questions? Let me just ask a couple questions
8 for this final minute or two. Mr. Nelson, I
9 just, since I don't know these establishments
10 that well, why didn't, there's no alley
11 measurement for Dirty Martini and Midtown.
12 Can you explain that?
13 MR. NELSON: There's no what?
14 MEMBER ALBERTI: You have no alley
15 measurement on this longer chart that Mr.
16 Fonseca was speaking to. There's no alley
17 measurement for Dirty Martini and Midtown.
18 You have RoseBar front, RoseBar alley. You
19 have Dirty Martini --
20 MR. NELSON: Well --
21 MEMBER ALBERTI: -- front and
22 Midtown front, but no alley.
Neal R. Gross and Co., Inc. 202-234-4433 Page 425 1 MR. NELSON: I don't know.
2 MEMBER ALBERTI: You don't, there
3 is no rationale for not doing the alleys
4 there?
5 MR. NELSON: I don't think so, no.
6 MS. PECK: Would you like me to
7 answer?
8 MR. NELSON: I think it was just
9 omitted here.
10 MS. PECK: Okay.
11 MEMBER ALBERTI: Okay. Okay. I
12 have no further questions. Mr. Jones?
13 MEMBER JONES: Thank you very much,
14 Chair. Very quickly, the ambient measure that
15 you took, or was noted in the Exhibit H, I
16 believe, that was taken on the 5th.
17 There's a note in here that
18 indicates it was taken, Note D, was taken on
19 the evening of March 5th when none of the
20 clubs, including Ozio, was operating. Do you
21 see that in your exhibit, or in the exhibit?
22 MR. NELSON: No, it was at 7:45.
Neal R. Gross and Co., Inc. 202-234-4433 Page 426 1 You're talking about --
2 MEMBER JONES: Yes.
3 MR. NELSON: -- the one at 7:45
4 p.m. No. We did that when Ozio was, it was
5 not operating, or we thought it was not
6 operating anyway.
7 MEMBER JONES: Correct. So that
8 was a, that was your true ambient reading at
9 that point in time. Yes?
10 MR. NELSON: That was, I'm not
11 making it, I'm not drawing any conclusions.
12 I'm not personally drawing any conclusions
13 about who's responsible for all this noise.
14 MEMBER JONES: Understood.
15 MR. NELSON: I'm only telling you,
16 reporting, what I actually measured.
17 MEMBER JONES: So, let me preface
18 this. I'm really just asking these questions
19 so that I have a comparative measure between
20 your readings, and the readings from the --
21 MR. NELSON: Yes.
22 MEMBER JONES: -- the sound
Neal R. Gross and Co., Inc. 202-234-4433 Page 427 1 engineer that testified earlier. So I just
2 wanted to clarify, and get clear in my head,
3 whether or not I'm looking at apples and
4 apples, or apples and oranges, so when I go
5 back and review these, the evidence, I have a
6 good basis and a level of understanding.
7 So my question to you has nothing
8 to do with whether it came from Ozio or where
9 ever not. I just want to understand you
10 established an ambient value based on the
11 reading that you took on March 5th, 7:45 p.m.
12 And that ambient value, according
13 to the note, indicates that that was taken
14 when none of the clubs were in operation.
15 MR. NELSON: Right.
16 MEMBER JONES: Okay.
17 MR. NELSON: It was taken, it was
18 intended to be taken when none of the clubs
19 were in operation.
20 MEMBER JONES: Okay. I just wanted
21 to confirm that that was correct.
22 MR. NELSON: Yes.
Neal R. Gross and Co., Inc. 202-234-4433 Page 428 1 MEMBER JONES: That statement is
2 correct?
3 MR. NELSON: Yes.
4 MEMBER JONES: Okay.
5 MR. NELSON: That was our --
6 MEMBER JONES: And you were the one
7 who took that measurement.
8 MR. NELSON: -- that was our
9 purpose. To get a reading at a time when the
10 others were not in operation.
11 MEMBER JONES: Understood, and you
12 --
13 MR. NELSON: But some of the
14 traffic was flowing around.
15 MEMBER JONES: Correct. That's the
16 definition of the ambient, right? So, make
17 sure, you took that measurement, correct?
18 MR. NELSON: I did.
19 MEMBER JONES: Okay. And the
20 measurement that was taken on March 9th at
21 11:45 a.m. where it's noted as 63 dBa for
22 ambient, and you noted there, or it's noted
Neal R. Gross and Co., Inc. 202-234-4433 Page 429 1 here --
2 MR. NELSON: Yes, yes. I took --
3 MEMBER JONES: You took that
4 measurement?
5 MR. NELSON: -- all the readings.
6 MEMBER JONES: Okay. Thank you.
7 MR. NELSON: No one else recorded
8 any --
9 MEMBER ALBERTI: You are the
10 keeper.
11 MEMBER JONES: I got it. No, I
12 just wanted to make sure. I just wanted to
13 establish.
14 MR. NELSON: Yes.
15 MEMBER JONES: It wasn't clear to
16 me that it was established that you actually
17 took these measurements, and if it was I
18 missed it, so I just wanted to make sure I was
19 clear.
20 MR. NELSON: Yes, yes.
21 MEMBER JONES: Thank you. Thank
22 you very much, Mr. Chair.
Neal R. Gross and Co., Inc. 202-234-4433 Page 430 1 MEMBER ALBERTI: Ms. Peck any
2 cross, yes.
3 MS. PECK: Two quick questions.
4 MEMBER ALBERTI: Redirect based on
5 the board's questions?
6 MEMBER JONES: Two minutes.
7 MS. PECK: That chart was made
8 roughly in November time frame. Is that
9 correct?
10 MR. NELSON: I don't remember when.
11 MS. PECK: Just based on the dates,
12 is that probably --
13 MR. NELSON: Apparently.
14 MS. PECK: -- a fair estimate?
15 Have we been taking dates --
16 MR. NELSON: I don't remember the
17 exact answer to that question.
18 MS. PECK: Yes. Have we been
19 taking measurement, have you been taking
20 measurements from those dates on?
21 MR. NELSON: Yes, yes.
22 MS. PECK: Have we created a
Neal R. Gross and Co., Inc. 202-234-4433 Page 431 1 complete sound --
2 MR. NELSON: No.
3 MS. PECK: -- a date chart?
4 MR. NELSON: No. We have not made
5 a complete chart of all measurements taken.
6 We've repeatedly gone out and taken
7 measurements.
8 MS. PECK: And if there was a
9 hunger for one of those charts, would you be
10 happy to make one?
11 MR. NELSON: I would.
12 MS. PECK: So it's up to you
13 whether you --
14 MR. NELSON: Especially if Mr.
15 Fonseca would like one.
16 MS. PECK: And I'd also like to ask
17 you about the cost of the windows that you've
18 installed in your bedroom and what the cost
19 would be to have them installed on the entire
20 front of your unit?
21 MR. NELSON: This is, the meter had
22 nothing to do with this. We were getting so
Neal R. Gross and Co., Inc. 202-234-4433 Page 432 1 much noise, Ms. Nichols is very sensitive to
2 this kind of noise.
3 We're getting so much noise and we
4 wanted to stay where we were because we like
5 the property value going up, that we invested
6 in a set of extra windows.
7 Our bedroom, on the front of the
8 building, all the bedrooms have a balcony
9 where you can get to the windows to do
10 something with them.
11 So we invested in an extra set, a
12 storm door of laminated glass and an extra set
13 of storm windows with laminated glass to
14 further raise the noise insulation, which it
15 did by about, I don't remember, five dB maybe.
16 But when it comes to sleeping, the
17 30 dB, the World Health Organization says 30
18 dB is the standard. For restful sleep you
19 should be at 30 dB or less, and this cut our
20 noise down to that level or close to it.
21 MS. PECK: And what was the cost to
22 you for installing those windows?
Neal R. Gross and Co., Inc. 202-234-4433 Page 433 1 MR. NELSON: The cost for that
2 bedroom window was $4,500.
3 MS. PECK: And what, then you got a
4 cost estimate to put windows on the other two
5 rooms that turn towards the street?
6 MR. NELSON: There were, yes, the
7 estimate to replace the double paned windows
8 out in the other two rooms was $4,400.
9 Unfortunately they never finished.
10 They got most of them, but they ran
11 into a problem they couldn't solve, so my
12 contractor dismounted. Though I got most of
13 it done, for only the cost of the paint.
14 He disappeared and his bill
15 disappeared too. Oh, we made one other
16 pricing. We considered replacing all the
17 windows with super duper triple pane glass
18 from a company in Minnesota. The price for
19 that was $50,000.
20 MS. PECK: No further questions.
21 MEMBER ALBERTI: Okay. Recross Mr.
22 Fonseca? Do you have a question?
Neal R. Gross and Co., Inc. 202-234-4433 Page 434 1 MR. FONSECA: Yes. Time is
2 limited. I don't know how many witnesses she
3 has.
4 MEMBER ALBERTI: Okay.
5 MS. PECK: Just one more.
6 MEMBER ALBERTI: All right.
7 MR. FONSECA: I'm fine.
8 MEMBER ALBERTI: Okay. Great. So
9 I think we have a follow up question from the
10 board. Mr. Rodriguez?
11 MEMBER RODRIGUEZ: Yes. Mr.
12 Nelson, you're certainly a lot smarter than I
13 am, putting all this together, but I have a
14 question here.
15 And that is I see that the Ozio is
16 the lowest in terms of the difference between
17 baseline two and music, which was pointed out
18 by counsel and all that. My question is,
19 these other high levels here, is anybody going
20 after them?
21 MR. NELSON: Going after? Sorry
22 what?
Neal R. Gross and Co., Inc. 202-234-4433 Page 435 1 MEMBER RODRIGUEZ: No, is there any
2 protest on these other establishments that
3 have these high levels of decibels?
4 MR. NELSON: Well I'll put it, oh.
5 Eventually, yes, we're basically protesting
6 them all, because this is an opportunity to do
7 it, to get a check and wait a minute and let's
8 review the bidding on what's going on here.
9 MEMBER RODRIGUEZ: Okay.
10 MR. NELSON: And we have talked to
11 all of them. RoseBar, Midtown, Public, Dirty
12 Martini. We've talked to them all. We're in
13 negotiations to try to get some sort of a
14 settlement so we don't have to torture you
15 with these things again.
16 MEMBER RODRIGUEZ: Well thanks for
17 your service sir.
18 MEMBER ALBERTI: Okay. I think
19 that that's going to wrap that up. Thank you
20 Mr. Nelson for coming, and thank you for your
21 testimony. And it's always a pleasure to see
22 you sir. It's not that it's much torturous.
Neal R. Gross and Co., Inc. 202-234-4433 Page 436 1 Okay Ms. Peck.
2 MS. PECK: Thank you.
3 MEMBER ALBERTI: First of all, Mr.
4 Jones, how much time does Ms. Peck have?
5 MEMBER JONES: Two minutes.
6 MALE PARTICIPANT: I'm sorry sir.
7 MEMBER ALBERTI: And the Licensee
8 has?
9 MEMBER JONES: Three minutes.
10 MEMBER ALBERTI: All right, so --
11 MS. PECK: I have two minutes left?
12 MEMBER JONES: Yes, ma'am.
13 MEMBER ALBERTI: Yes.
14 MS. PECK: Really?
15 MEMBER ALBERTI: The time flies
16 doesn't it?
17 MS. PECK: Yes it does.
18 MEMBER ALBERTI: When you're having
19 fun.
20 MEMBER JONES: When you're having
21 fun.
22 MS. PECK: Yes. All right, well I
Neal R. Gross and Co., Inc. 202-234-4433 Page 437 1 will call for the shortest description,
2 discussion with Abigail Nichols that you ever
3 imagined.
4 MEMBER ALBERTI: Okay. Ms.
5 Nichols, would you raise your right hand? Do
6 you solemnly affirm that the testimony you are
7 about to give will be the truth, the whole
8 truth, and nothing but the truth?
9 MS. NICHOLS: I do.
10 MEMBER ALBERTI: Thank you. Please
11 be seated.
12 MS. PECK: Abigail, could you
13 please state your name and spell it, if you
14 could.
15 MS. NICHOLS: I am Abigail Nichols,
16 A-B-I-G-A-I-L, N-I-C-H-O-L-S. I live at the
17 Palladium at 1325 18th Street Northwest.
18 MS. PECK: Abigail, please tell us
19 why you think you can hear Ozio from your
20 bedroom.
21 MS. NICHOLS: We hear a lot of
22 noise. We've submitted letters that show our
Neal R. Gross and Co., Inc. 202-234-4433 Page 438 1 windows shake at times, but generally you
2 cannot figure out where it's coming from.
3 But one Sunday, and this is not
4 about Ozio, but why I believe I could hear
5 Ozio. On a Sunday night I was still dressed
6 when the boom boom started and I forced Carl
7 to go out on the street and see if we could
8 figure out where it came from.
9 Sunday night all the bars are not
10 operating, and we were able to trace the music
11 very decidedly to the 18th Street Bar, which
12 is feet from Ozio.
13 So if we showed that both are
14 equally loud, I infer from that that this
15 massive noise that affects our building
16 includes noise from Ozio.
17 MS. PECK: I have no further
18 questions.
19 MEMBER ALBERTI: Okay, thank you.
20 Mr. Fonseca?
21 MR. FONSECA: All right, you drew
22 an inference from Mr. Nelson confirming the
Neal R. Gross and Co., Inc. 202-234-4433 Page 439 1 18th Street Lounge was open and there was
2 music --
3 MS. NICHOLS: No I was with him.
4 No I did it. We went together. There was no
5 noise on the street except this boom boom that
6 we followed to its source, which in general --
7 MR. FONSECA: The source was both?
8 MS. NICHOLS: Pardon?
9 MR. FONSECA: Your testimony was
10 the source was both 18th Street and --
11 MS. NICHOLS: No, it was only 18th
12 Street Lounge.
13 MR. FONSECA: Oh it was 18th Street
14 Lounge.
15 MS. NICHOLS: Only 18th Street
16 Lounge. Otherwise once I left the house it
17 would be a kind of blur.
18 MR. FONSECA: Oh, okay, because it
19 wasn't clear, because her original her
20 question on this was, why do you think you
21 hear Ozio's and then you went into this
22 elaborate --
Neal R. Gross and Co., Inc. 202-234-4433 Page 440 1 MS. NICHOLS: I inferred.
2 MR. FONSECA: -- making it sound,
3 so you inferred before you confirmed that Ozio
4 --
5 MS. NICHOLS: I have no way to
6 confirm, because there's such a blast of noise
7 from south of the street.
8 MR. FONSECA: But on that one time
9 when you had, shall we call it, a unique
10 opportunity --
11 MS. NICHOLS: Yes.
12 MR. FONSECA: -- to find only one
13 establishment, the 18th Street Lounge, and
14 confirmed Ozio was not producing sound --
15 MS. NICHOLS: Right.
16 MR. FONSECA: -- on that Sunday.
17 MS. NICHOLS: Right.
18 MR. FONSECA: Okay.
19 MEMBER ALBERTI: Wait, will you
20 repeat what you said?
21 MR. FONSECA: All right. So on
22 this evening, this Sunday, where she heard
Neal R. Gross and Co., Inc. 202-234-4433 Page 441 1 enough boom boom that she and her husband, or
2 she and Mr. Nelson went down, walked down,
3 confirmed the source was 18th Street Lounge,
4 it was not in addition to 18th Street Lounge,
5 Ozio?
6 MS. NICHOLS: No.
7 MR. FONSECA: All right. So this
8 infer has nothing to do with Ozio, the
9 inference was before you ever did a
10 confirmation. So your conclusion is, as of
11 that day, it wasn't Ozio.
12 MS. NICHOLS: No. From that
13 experience I infer that on the nights when
14 many clubs are operating, that Ozio is part of
15 what we hear.
16 Also I know Mr. Nelson has done
17 some sound attenuation studies about how far
18 noise moves, and we know it's very
19 complicated.
20 That's why we undertook this
21 project, to try to figure out how we can make
22 our community more livable. It's not, as we
Neal R. Gross and Co., Inc. 202-234-4433 Page 442 1 said at the beginning, Ozio came up first. We
2 had sound readings that Ozio was over the
3 limit.
4 MR. FONSECA: Is it a reasonable
5 statement to say that the alley behind
6 Connecticut Avenue fronting establishments
7 like Midtown Lounge and Bar.
8 The noise that travels down that
9 canyon hits the Palladium with a distinctness
10 that's clearer than any of the other sounds
11 that are coming towards the Palladium?
12 MS. NICHOLS: I don't have a lot of
13 experience. Ms Peck had a clear experience of
14 that. The night that I called ABRA, they
15 seemed to trace it to the 18th Street side. I
16 mean, that was the only bar they went into
17 after, I can describe that experience --
18 MR. FONSECA: Was that 18th Street
19 Lounge?
20 MS. NICHOLS: No it was Public Bar.
21 MR. FONSECA: It was Public then?
22 And when was this?
Neal R. Gross and Co., Inc. 202-234-4433 Page 443 1 MS. NICHOLS: May 5th, 2012.
2 MEMBER ALBERTI: Okay. Mr. Fonseca
3 I will remind you --
4 MR. FONSECA: Okay.
5 MEMBER ALBERTI: -- you got to wrap
6 it up.
7 MR. FONSECA: Okay. Last question.
8 Ms. Peck, she moved into the building in 2011,
9 correct?
10 MS. NICHOLS: I don't know.
11 MR. FONSECA: You don't know. She
12 hasn't been there as long as I have.
13 MR. FONSECA: Well you are, you're
14 pretty much the head of the association for
15 the building, correct?
16 MS. NICHOLS: No. Jim King is the
17 President of the Condo Association.
18 MR. FONSECA: But you're very
19 active with it though, aren't you?
20 MS. NICHOLS: Right, particularly
21 in alcohol licensing.
22 MR. FONSECA: That's what I, that's
Neal R. Gross and Co., Inc. 202-234-4433 Page 444 1 how I came to meet you. I know that.
2 MS. NICHOLS: Right.
3 MR. FONSECA: When did she first
4 come to you with noise complaints,
5 approximately?
6 MS. NICHOLS: November, right after
7 November 2nd, last fall.
8 MR. FONSECA: 2013.
9 MS. NICHOLS: Yes.
10 MR. FONSECA: So Ozio's been
11 operating since 2011, that roof top. Correct?
12 MS. NICHOLS: Right, on that
13 particular noise violation, we're not --
14 MR. FONSECA: All right. I'm
15 trying to get comparisons here. A sense of
16 what's bothering whom in your building.
17 MEMBER ALBERTI: Okay. Okay. All
18 right.
19 MR. FONSECA: I think I'm done.
20 MEMBER ALBERTI: Thank you. All
21 right. Board questions?
22 MALE PARTICIPANT: No.
Neal R. Gross and Co., Inc. 202-234-4433 Page 445 1 MEMBER ALBERTI: Okay. Mr.
2 Silverstein?
3 MEMBER SILVERSTEIN: Thank you for
4 your patience, everyone.
5 MS. NICHOLS: I admire your
6 patience. I often see Mr. Silverstein after
7 these meetings at the AFC. I don't know how
8 he's still standing.
9 MEMBER SILVERSTEIN: Well, I'm not.
10 I'm sitting. A question we often ask, assume
11 or innuendo, that they're going to get the
12 license. What do you need to make it
13 palatable?
14 MS. NICHOLS: Less, a lower level
15 of sound, of amplified music coming out of the
16 establishment.
17 MEMBER SILVERSTEIN: How's that
18 going to happen?
19 MS. NICHOLS: Well I think Mr.
20 Christacos described some procedures that he
21 has in mind, which we haven't really discussed
22 before today.
Neal R. Gross and Co., Inc. 202-234-4433 Page 446 1 It sounds like he's doing the kind
2 of things that, you know, the delimiters, part
3 of our question in this whole thing is, can we
4 make this enforceable?
5 They had a very good VA as Ms.
6 Kappel testified. And we have to figure out a
7 real clear way forward, because we don't want
8 to like, just like she said, I don't want to
9 be an enforcer.
10 We have agreements with several
11 patios across from the Palladium. They were
12 very clear, and we have no problems.
13 MEMBER SILVERSTEIN: It seems to me
14 here that from your own statistics that these
15 folks are not the worst offenders, and it's
16 not even close.
17 And that doesn't mean that they're
18 good, or great, or anything, in your opinion,
19 but there are others that are worse and
20 certainly there are others that are worse as
21 far as the Palladium is concerned.
22 Correct? I mean in terms of your
Neal R. Gross and Co., Inc. 202-234-4433 Page 447 1 quality of life. Not the quality of life of
2 people at Jefferson Row.
3 MS. NICHOLS: Right, right. It
4 seemed to us they all fit together in a group
5 because of the effect on Jefferson Place, the
6 combined effect on us, the lack of enforcement
7 over the years, that it's just kind of gotten
8 out of control.
9 I mean, it is out of control in the
10 sense of, you talk about property values.
11 People are moving. Move in, move out, we're
12 just stubborn, we'd rather make it more
13 liveable.
14 MEMBER SILVERSTEIN: Is it that
15 there are just too many summer gardens, too
16 many roof tops?
17 MS. NICHOLS: With uncontrolled
18 noise levels. I mean, you saw the measures
19 from all of the ones that we've been taking.
20 It's just because this hearing came up first,
21 there's been a lot of work.
22 We have protested either through
Neal R. Gross and Co., Inc. 202-234-4433 Page 448 1 the ANC and a combination of groups of five,
2 to talk to all the owners, we're working with
3 all of them.
4 MEMBER SILVERSTEIN: Well, the only
5 other thing that I want to mention here, and
6 ask you about. I'm looking here at the Google
7 street map of 1813 M Street, which is Ozio.
8 Right next door, literally across
9 this tiny alley, is an office building. And
10 looking at the rest of the map, it goes up,
11 and this eight story, ten story office
12 building would shield Connecticut Avenue from
13 their noise.
14 You said, you know, the noise would
15 not go beyond, through that office building,
16 would it?
17 MS. NICHOLS: No, and that's where
18 I think you all could provide leadership
19 because the noise could ricochet off the
20 office building on M Street, back up towards
21 us. We're not in a position to figure this
22 out. It's a very complicated engineering
Neal R. Gross and Co., Inc. 202-234-4433 Page 449 1 problem. We're doing the best we can.
2 MEMBER SILVERSTEIN: Okay. We've
3 been here long. Thank you.
4 MEMBER ALBERTI: Thank you Ms.
5 Nichols. I'm just flattered that you're
6 relying on us to figure it out. I'll leave
7 you with that. Thank you.
8 MS. NICHOLS: I'm hoping.
9 MEMBER ALBERTI: Okay. You're out
10 of time, Mr. Fonseca. Ms. Peck, any redirect
11 on the board's questions?
12 MS. PECK: Just with respect to the
13 observation that you could hear music from
14 18th Street at your apartment and on a
15 separate occasion when you called ABRA, they
16 felt that you could hear Public Bar music in
17 your apartment.
18 How far away are the distances,
19 because the question of whether it's possible
20 for sound from that area to reach Palladium,
21 how far is that distance. I just want to --
22 MS. NICHOLS: It's on the map that
Neal R. Gross and Co., Inc. 202-234-4433 Page 450 1 I turned in. I think it was 700 feet from us
2 to Ozio and less to the closest roof deck, but
3 on that occasion you're talking about, ABRA
4 never really determined that it was Public
5 Bar.
6 That went in to Public Bar but they
7 never linked it specifically to what they were
8 hearing in our apartment. That was what was
9 so frustrating about the process.
10 MEMBER ALBERTI: Okay. Take care,
11 Ms. Nichols.
12 MS. NICHOLS: Good night.
13 MEMBER ALBERTI: Or I should say
14 Commissioner Nichols, thank you. Okay. So I
15 think, I'm getting signals here, but I don't
16 think they matter. Yes, right. We're going
17 to move to closing arguments. Five minutes
18 for each side. Mr. Fonseca, you're first.
19 MR. FONSECA: Yes but, well we
20 thank the board, this obviously is a very long
21 day, hearing, and we appreciate your time and
22 consideration.
Neal R. Gross and Co., Inc. 202-234-4433 Page 451 1 We believe the combination of our
2 witness, including our sound engineer, that
3 we've established both at the time when we
4 initially entered in to this voluntary
5 agreement as successor, that we established
6 some baselines and some complaint mechanisms
7 that we believe can work, and to some extent,
8 were working.
9 We've had some testimony suggesting
10 that it just wasn't enough. In light of the
11 fact that there had been no hard and fast
12 enforcement of the Noise Control Act with the
13 noise level reading, we've now reached the
14 point where we're in effect, and with again
15 our sound engineer coming back, attempting to
16 correct that.
17 You heard testimony of a new
18 baseline and with a limiter in a place that
19 could take care of this. Attempts to
20 reconfigure and have to figure out what
21 they're going to do, but to the extent they're
22 not having live bands on the roof deck area,
Neal R. Gross and Co., Inc. 202-234-4433 Page 452 1 is probably going to be one concession that's
2 going to have to make this work.
3 We don't believe anything that's
4 going on because as it was brought out in
5 testimony that there's three different sound
6 systems in the sense that there's -- what's
7 over on the roof top is one dedicated sound
8 system. So we haven't heard, based on
9 anyone's measurements in the front side, that
10 anything coming out is on the inside, because
11 they do run music throughout all the floors.
12 So we believe we've found the
13 solution to make this work. There still
14 continues to be a voluntary agreement that's
15 enforceable, so there are two different
16 mechanisms that can work now.
17 And this new ABRA task force would,
18 I believe, allow both DCRA to sanction with
19 fines, and possible, well you know, subject to
20 argument as to whether or not it's double
21 dipping or, you know, two agencies basically
22 charging the same item.
Neal R. Gross and Co., Inc. 202-234-4433 Page 453 1 The fact that a violation of the
2 noise control act is a violation of the ABC
3 statute so there's, in other words you could
4 ding them twice, and that is another reason,
5 with advice of counsel, that we're trying to
6 make sure we comply with the dBa readings of
7 the Noise Control Act, because we know that
8 day is coming.
9 And fortunately we're not the first
10 on that. We're first on the protest, but I
11 haven't seen this is the first on the
12 enforcement side, because I think they're
13 going to have that under control.
14 We can't control the fact that
15 there is a, without a doubt, a club central.
16 It's grown, it's obvious, we knew this day was
17 coming. Years ago before the creation of the
18 Jefferson Row, Jefferson Place or Jefferson
19 Row condominiums, there were no complaints,
20 because there were no nearby residents, but
21 there weren't that many outdoor spaces.
22 That's come and gone, and frankly,
Neal R. Gross and Co., Inc. 202-234-4433 Page 454 1 but for the Jefferson Row condominium you
2 wouldn't have a voluntary agreement on this
3 space because it was constructed at
4 significant amount of money which we've
5 testified to, in the excess of one million
6 dollars to do this build out.
7 So it's an important component,
8 it's an expensive component, it has to pay for
9 itself. So we believe that as to peace, order
10 and quiet, that appropriateness standard is
11 going to weigh towards the applicant for its
12 continued efforts to try to comply with the
13 voluntary agreement, and now with also the
14 Noise Control Act.
15 We believe real property values,
16 frankly I think it's impossible to truly argue
17 that in this area where you've got both a C3C
18 zone where Jefferson Row Condos are, or the
19 Palladium, everyone's property values have
20 been increased.
21 There are assessments, and if there
22 is a sense of personal and subjective quality
Neal R. Gross and Co., Inc. 202-234-4433 Page 455 1 of life, because there is noise, thereby my
2 property values are going down, I don't think
3 anyone who would go out here and was a
4 licensed real estate appraiser would do that.
5 I think they go by what's been
6 recently sold, and what are similar
7 properties. And I don't believe this is going
8 to, Ozio of and by itself has a negative
9 effect on anything going on at the Palladium.
10 And to the extent that it would
11 have any impact on Jefferson Row, it wasn't
12 essentially proven here, and we think also
13 that the Office of Tax and Revenues
14 Assessments have gone up across the City and
15 across the board.
16 So we believe that the Board
17 should, and we believe the Licensee is
18 entitled to renewal of the license without any
19 further restrictions other than the voluntary
20 agreement, and the commitments that have been
21 made here, and to continue to monitor and keep
22 the sound levels to be compliant.
Neal R. Gross and Co., Inc. 202-234-4433 Page 456 1 I mean, we'll be the first to know,
2 and the Board will have the ability to enforce
3 if and when there were a Noise Control Act
4 violation.
5 And we think this is how it should
6 be, because as I said in my opening statement,
7 and I'll close with it, it's one thing to have
8 the regulators regulate, and that's how it
9 should be.
10 That's how the government was set
11 up, we've got multiple agencies, you've got
12 MPD, you've got Fire, and you've got ABC,
13 ABRA, and you've got DCRA.
14 All of them combined with capacity,
15 the fire code, for noise, for crime, for
16 liquor licensing and some of the quality of
17 life issues with ABRA, we believe you all
18 should regulate the noise issue and not to
19 have, essentially some deputies that have
20 assigned to themselves the power to go out and
21 take measured readings and find you to be non-
22 compliant, therefore you would lose your
Neal R. Gross and Co., Inc. 202-234-4433 Page 457 1 liquor license. Thank you.
2 MALE PARTICIPANT: Thank you.
3 MEMBER ALBERTI: Thank you Mr.
4 Fonseca. Ms Peck.
5 MS. PECK: Well what I wrote before
6 has changed significantly because we are very
7 encouraged to hear the kinds of actions that
8 Mr. Christacos has taken since we last spoke,
9 so you know, positive feedback there.
10 Let me say that, to start with,
11 again I'm a volunteer, we're all volunteers.
12 I have now taken off, this is the fourth day
13 from work.
14 I work for the State Department.
15 I've taken off to just prepare for this
16 proceeding. Let's not even count all the
17 evenings at 1 o'clock, 2 o'clock, 3 o'clock in
18 the morning, we've been walking around, or the
19 hearing that we attended for the oversight
20 committee to talk about the lack of
21 enforcement and the meetings with all of these
22 officials.
Neal R. Gross and Co., Inc. 202-234-4433 Page 458 1 It's astonishing how much time we
2 have spent, and you've heard again and again
3 how businesses in this area are just simply
4 ignoring the law. They're ignoring it.
5 Even Ozio, one of their witnesses
6 testified when our noise isn't on we hear all
7 this noise come in and we can hardly hear
8 ourselves think. It's so loud out there.
9 That is a violation of the law
10 that's been in place since 1974. That law
11 says in a commercial zone, businesses
12 including clubs, it's 60 decibels. Do we have
13 that law or not?
14 What does that mean? It means
15 you're supposed to keep it in. That's what it
16 means. You heard Anne Kappel talk about
17 Camelot being a good neighbor.
18 It's a strip club. A good
19 neighbor. Why, because it keeps the sound in.
20 They know not to be bugging their neighbors,
21 you know. They keep it all locked up, under
22 lock and key, and that's a smart thing to do.
Neal R. Gross and Co., Inc. 202-234-4433 Page 459 1 And that's what New York City does.
2 And that's what Miami Beach does. A lot of
3 these cities have noise ordinances that are
4 not that different from ours.
5 The difference is they enforce
6 them, and they have strict regulations. They
7 have sound mitigation technology requirements,
8 and they require every business to have the
9 sound engineer come in and certify that they
10 are compliant with the law.
11 So that's the problem here. All of
12 these clubs aren't complying. And so when
13 they say things like well, the other one, the
14 other one is the loud one, that's what they
15 all say. Every one of them says it.
16 And the problem is no one is saying
17 no, you know what? If we can hear any of you
18 it's too loud. That's the problem. When we
19 took the noise readings in November, we were
20 just getting started with no understanding of
21 the impact of broadcasting from a roof deck.
22 We were still on the ground,
Neal R. Gross and Co., Inc. 202-234-4433 Page 460 1 wandering around, that's where we were. We
2 were on the ground. But since then we've had
3 a chance to see the impact, and measure the
4 impact, working with owners who have roof
5 decks.
6 Not Mr. Christacos, but Mr. Romeo
7 who owns Midtown and Dirty Martini. Sometimes
8 it's right there at the base, you can't hear
9 it at all. It isn't until you're several
10 blocks away that you hear it.
11 We've been shocked. And so that
12 trip that we took on March 8th, 9th, up onto
13 the, for the first time, up onto the Jefferson
14 Row roof and we saw, and we could hear clearly
15 from 160 feet away, music coming from Ozio.
16 That's not right. You know, the
17 sound ordinance says 60 decibels. That's the
18 sound of a conversation. Right outside of
19 Ozio, if someone were speaking, you wouldn't
20 be able to hear it on the Jefferson Row roof
21 deck, and that's what we're aiming for.
22 We're aiming for all of these
Neal R. Gross and Co., Inc. 202-234-4433 Page 461 1 business owners to be responsible and to zip
2 it up. That's the law. We can change the
3 law, but for now this is the law.
4 We need to enforce this. Now for
5 the first time Mr. Christacos is talking about
6 he's turning down the volume. We don't know
7 what that is.
8 You know, big question marks, big
9 mystery, that's not very reassuring to a
10 resident who's just spent this much time
11 trying to get attention to let everyone know
12 that people, responsible people, that this is
13 a problem.
14 And what it really boils down to
15 is, I agree with Anne Kappel. I think Mr.
16 Christacos is a responsible business owner.
17 He has been operating for a very long time.
18 The difference is, for the first time he's got
19 a roof deck.
20 And others are getting them, and
21 they're proliferating. You heard her testify
22 that a sheer terror to all of us, there is
Neal R. Gross and Co., Inc. 202-234-4433 Page 462 1 another one coming onto this block, right next
2 to 18th Street and Public Bar, right down the
3 street from Anne Kappel's house, right down
4 the alley from Ozio.
5 And they don't have their license
6 yet. Someone's going to come in here in front
7 of you guys, I don't know how this works, but
8 I assume it's you.
9 And if you grant yes, and you say
10 okay to amplified sound, what you are doing is
11 giving them a license to do something that
12 when operated as intended will violate the
13 law. That's a problem. It's got to stop.
14 So I think, you know, we need to
15 run out and draft a law and say no more
16 amplified sound on roof decks, ideally you
17 don't need that because it's against the law
18 anyway.
19 It violates the law. So we still
20 believe, and we asked Mr. Steve Koniglio who's
21 got that new development on N Street to come
22 in and talk about his view of the impact of
Neal R. Gross and Co., Inc. 202-234-4433 Page 463 1 sound on his attempt to sell luxury
2 condominiums in the area.
3 I'm sorry that he was unable to be
4 here today, I couldn't put any evidence on
5 that point, although I would have to say that
6 any person who's got a lot of money to spend,
7 the first thing they hear that there's going
8 to be 90 decibels blasting into their window,
9 they're going to think twice before buying.
10 So I think it does have an impact
11 on property values. So I'll just throw that
12 out there.
13 I'll just conclude with, I think we
14 have demonstrated that Mr. Christacos, in good
15 faith or not, has actually been in violation
16 of the noise ordinance ever since he built
17 this roof deck.
18 And it is only now, under all of
19 this pressure, and under the notice sent by
20 ABRA that he's finally taking this seriously
21 and doing the things that he should have been
22 doing long ago.
Neal R. Gross and Co., Inc. 202-234-4433 Page 464 1 So I would say that, you know, I
2 still stand by our position, that we would
3 like you to not renew his license until that
4 very clear agreement is in place exactly what
5 he's going to do, because you've heard Ms.
6 Kappel say that the existing settlement
7 agreement that has all the right language in
8 it doesn't work. Thank you.
9 MEMBER ALBERTI: Thank you Ms.
10 Peck. Before I close the record I want to
11 make sure I have your exhibits. All right, so
12 we have a whole packet in --
13 MS. PECK: Right.
14 MEMBER ALBERTI: -- and I'm still
15 confused with it. So the first page of that
16 packet is just a PIF. So that's in our
17 records. That's not really an exhibit.
18 MS. PECK: Right.
19 MEMBER ALBERTI: The second thing I
20 have from that packet is the letter from Ms.
21 Kappel.
22 MS. PECK: Right.
Neal R. Gross and Co., Inc. 202-234-4433 Page 465 1 MEMBER ALBERTI: Right. So I don't
2 know how to label that because you've labeled
3 these things --
4 MS. PECK: We have a missing
5 Exhibit E. We could call it Exhibit E.
6 MEMBER ALBERTI: Exhibit E? All
7 right. We'll call it Exhibit E.
8 MS. PECK: Exhibit E.
9 MR. FONSECA: I called it L, but
10 we'll fix it.
11 MEMBER ALBERTI: Exhibit E.
12 MR. FONSECA: Easily make an L,
13 turn an L into an E.
14 MEMBER ALBERTI: All right, so
15 Exhibit E. All right, so, very good. And
16 then we have this statement from the
17 Protestant which we heard nothing about.
18 MS. PECK: That was, you know the little
19 box that says put your statement in there? I
20 expanded that to make our statement, this is
21 what our case is about.
22 MEMBER ALBERTI: But was this part
Neal R. Gross and Co., Inc. 202-234-4433 Page 466 1 of your PIF?
2 MS. PECK: Yes. It's part of our
3 PIF.
4 MEMBER ALBERTI: All right, so I'm
5 not going to accept that as exhibit, it's --
6 MS. PECK: No it's not an exhibit,
7 it's part of the PIF. Right.
8 MEMBER ALBERTI: Part of the PIF.
9 Part of the PIF, all right.
10 MS. PECK: And it's expressly
11 stated in the PIF's C Statement.
12 MEMBER ALBERTI: It should be part
13 of our records.
14 MS. PECK: Yes. It's the PIF.
15 MEMBER ALBERTI: All right. Very
16 good.
17 MR. FONSECA: Let's go back for me.
18 First Exhibit is A, which looks to be either a
19 printout of a website or a --
20 MEMBER ALBERTI: Well we haven't
21 gotten there yet.
22 MR. FONSECA: It's just, we're on
Neal R. Gross and Co., Inc. 202-234-4433 Page 467 1 A. I'm trying to figure this, okay.
2 MEMBER ALBERTI: Oh, why did I say
3 A?
4 MR. FONSECA: No, I don't think,
5 I'm not sure.
6 MEMBER ALBERTI: Yes, we're now at
7 A.
8 MR. FONSECA: Okay.
9 MEMBER ALBERTI: You got ahead of
10 me.
11 MR. FONSECA: A was not discussed -
12 -
13 MEMBER ALBERTI: Not discussed.
14 MR. FONSECA: -- so I would move to
15 strike A.
16 MEMBER ALBERTI: Okay. Ms. Peck,
17 you want to talk about it?
18 MS. PECK: This is a publically
19 available ad that shows the activity of
20 people, patrons in place, operate in dancing
21 in the club, did not have a chance to put it
22 in so, but I would like it in, but if you
Neal R. Gross and Co., Inc. 202-234-4433 Page 468 1 won't --
2 MEMBER ALBERTI: I'm not going to
3 accept A. There's really no basis for it and
4 I'm not sure it harms you much.
5 MS. PECK: No, it doesn't. Okay.
6 MEMBER ALBERTI: Okay, so Exhibit B
7 really is the video. One piece of the video.
8 Exhibit C is this affidavit from Carl Nelson.
9 Is there any objections?
10 MR. FONSECA: This is the one that
11 I argued against, but I don't think you ruled
12 against --
13 MEMBER ALBERTI: I did not rule on
14 it.
15 MR. FONSECA: -- accepting it,
16 because it goes far afield of just taking the
17 measurements he had and giving his opinions on
18 issues as to whether, you know, using the C
19 range and a number of other things.
20 MEMBER ALBERTI: All right. Ms.
21 Peck? You want --
22 MR. FONSECA: If he's able to
Neal R. Gross and Co., Inc. 202-234-4433 Page 469 1 testify, and I can cross examine that, but I
2 can't cross examine --
3 MEMBER ALBERTI: Okay.
4 MR. FONSECA: -- this affidavit.
5 MS. PECK: Yes, so I believe that
6 he testified to all of the relevant portions
7 of this affidavit. So it's there for your
8 convenience if you want, but we don't have to
9 submit it --
10 MEMBER ALBERTI: I'm going to
11 accept it and give it the weight that it's
12 worth, noting that we didn't qualify Mr.
13 Nelson as a sound expert, so the board
14 understands that --
15 MR. FONSECA: Right.
16 MEMBER ALBERTI: --limitation when
17 we read any of the opinions and information
18 discussed in this. So we'll give it the
19 weight that it's worth, but we will accept it.
20 All right. We have Exhibit D,
21 which is another piece of video. Exhibit G
22 which is, I'm not sure. Oh that's actually,
Neal R. Gross and Co., Inc. 202-234-4433 Page 470 1 that's in the public record, right? The
2 letter from Director Moosally. And what else
3 is part of that? That was pages from the
4 code?
5 MS. PECK: There is also a letter
6 from the Mayor's Office.
7 MEMBER ALBERTI: And a letter from
8 the Mayor's Office?
9 MR. FONSECA: Yes, I believe. So
10 did we just race past F, which I don't know
11 that that needs to be in there, because Ms.
12 Nichols, Exhibit F looked like an affidavit of
13 Ms. Nichols'. I --
14 MEMBER ALBERTI: Okay, so like Page
15 1 and 2, Page 1 is a letter which is in, which
16 I'll leave in because that's part of ABRA
17 records. That's a letter from Mr. Moosally.
18 Page 2 is just an excerpt, and Page 3 are
19 excerpts from Title 25.
20 MR. FONSECA: Or actually --
21 MEMBER ALBERTI: And Title 23.
22 That would be correct?
Neal R. Gross and Co., Inc. 202-234-4433 Page 471 1 MR. FONSECA: Actually I think --
2 MEMBER ALBERTI: No?
3 MR. FONSECA: -- Title 25 and then
4 Page 3 --
5 MEMBER ALBERTI: Title --
6 MR. FONSECA: -- is actually of
7 Title 20, which is a noise regulation.
8 MEMBER ALBERTI: Title 20, so
9 that's part of public record. I'll leave that
10 in as part of the exhibits. Page 4, Exhibit G
11 is what?
12 MS. PECK: Page 4 of Exhibit G is a
13 letter from Christopher Murphy from the Office
14 of the Mayor, describing his desire to enforce
15 the noise ordinance, and telling us about the
16 commitments that the City was going to make to
17 do that.
18 MEMBER ALBERTI: Objections? Mr.
19 Fonseca?
20 MR. FONSECA: It sounds like a
21 Mayoral staffer saying we got your back, so --
22 MEMBER ALBERTI: All right.
Neal R. Gross and Co., Inc. 202-234-4433 Page 472 1 MR. FONSECA: -- I understood it.
2 MR. FONSECA: All right, so we're
3 going to accept that.
4 MR. FONSECA: I think I made a
5 political statement --
6 MS. PECK: Right.
7 MEMBER ALBERTI: Yes. Smart move.
8 All right, Exhibit H we've talked about, and
9 we've accepted. That's that chart. The next
10 one, I'm not even sure, it's not labeled.
11 It's Exhibit I, I guess is it?
12 MR. FONSECA: Yes.
13 MEMBER ALBERTI: Exhibit I.
14 MS. PECK: We had a series of maps
15 we were going to provide to you for assistance
16 in seeing where things were. Abigail was
17 going to authenticate them and describe them
18 to you, but we obviously did not have time.
19 MEMBER ALBERTI: Okay, so you want
20 to just --
21 MR. FONSECA: It's got to come out.
22 MEMBER ALBERTI: Well not --
Neal R. Gross and Co., Inc. 202-234-4433 Page 473 1 MS. PECK: No, they're not
2 necessary.
3 MEMBER ALBERTI: -- take those out.
4 Okay, great. So Exhibit I is out. Exhibit K
5 is another video.
6 MS. PECK: J.
7 MR. FONSECA: Where's J at. I
8 don't think we ever dealt with that. But
9 we've now jumped to K when J's in front of it.
10 MS. PECK: Right.
11 MR. FONSECA: I would argue --
12 MEMBER ALBERTI: K's in front of
13 it?
14 MR. FONSECA: -- against J, because
15 --
16 MEMBER ALBERTI: What is J?
17 MS. PECK: J again, we're not --
18 MR. FONSECA: J are six pages of
19 letters --
20 MEMBER ALBERTI: That's not in my
21 packet.
22 MR. FONSECA: Well it shouldn't be.
Neal R. Gross and Co., Inc. 202-234-4433 Page 474 1 I would object because they're individuals who
2 didn't testify and they, in essence, they're
3 hearsay that I can't cross examine.
4 MS. PECK: And I would say that
5 these are letters from residents in the
6 Palladium that give you a sense of what kind
7 of distress a tenant and residents are
8 experiencing in this neighborhood from the
9 noise.
10 It is true that we are not
11 submitting them as proof that Ozio is causing
12 this distress. It is a non-hearsay, as
13 opposed to the hearsay exception, but it's
14 non-hearsay simply being put in to show the
15 state of mind of the writers.
16 MEMBER ALBERTI: Well --
17 MS. PECK: Their feelings and
18 emotions, which is permissible under the rules
19 of evidence.
20 MEMBER ALBERTI: Okay.
21 MS. PECK: I was hoping that we
22 would have a little bit of --
Neal R. Gross and Co., Inc. 202-234-4433 Page 475 1 MEMBER ALBERTI: They will, I will
2 accept them. They will be treated similar to
3 hearsay, because --
4 MR. FONSECA: But you are accepting
5 them?
6 MEMBER ALBERTI: I am accepting,
7 because Mr. Fonseca has not had a chance to
8 examine them.
9 MR. FONSECA: I mean frankly --
10 MEMBER ALBERTI: We will give them
11 the weight that they are worth because you
12 have not had a chance, and they are just
13 opinions of people you have not had a chance
14 to cross examine.
15 So we'll take them as an exhibit
16 and give them the weight that they're worth,
17 with that huge caveat hanging over them.
18 MR. FONSECA: Right.
19 MEMBER ALBERTI: And what's L?
20 MR. FONSECA: K is in. So L, L I
21 would object to, I mean it appears to be a
22 graph that deals with how propagation of sound
Neal R. Gross and Co., Inc. 202-234-4433 Page 476 1 varies with frequency when we've really
2 clearly had testimony both from the --
3 MEMBER ALBERTI: Yes, there's --
4 MR. FONSECA: -- sound engineer and
5 Mr. Nelson dealt with dBa and the A range.
6 MEMBER ALBERTI: Ms. Peck?
7 MR. FONSECA: And that was not
8 dealing with sound frequency.
9 MEMBER ALBERTI: I got you. Ms.
10 Peck?
11 MS. PECK: This is actually also in
12 the affidavit of Carl Nelson, so you can, you
13 don't have to admit it --
14 MEMBER ALBERTI: Great.
15 MS. PECK: -- because you already
16 have it.
17 MEMBER ALBERTI: Very good. I
18 didn't see it in that, so we're going leave
19 that to the side. All right so --
20 MR. FONSECA: All right, and F --
21 MEMBER ALBERTI: -- the letters
22 that are --
Neal R. Gross and Co., Inc. 202-234-4433 Page 477 1 MR. FONSECA: -- I'm gathering F,
2 we just kind of blew by it. This is Ms.
3 Nichols' affidavit. I'm gathering that if you
4 took Mr. Nelson's affidavit you're taking Ms.
5 Nichols', or is this not in your packet?
6 MEMBER ALBERTI: Ms. Nichols'
7 affidavit? I didn't see that.
8 MS. PECK: Unfortunately, because I
9 had exactly two minutes to talk to her I did
10 not ask her to have her affidavit. She
11 simply, in both cases, they wrote in affidavit
12 form what they were prepared to testify to.
13 MEMBER ALBERTI: I didn't see that
14 in the packet.
15 MR. FONSECA: It's labeled Exhibit
16 --
17 MS. PECK: F.
18 MR. FONSECA: -- F. That's why I
19 kept asking as you were jumping from --
20 MS. PECK: You may have a --
21 MR. FONSECA: -- to G what happened
22 to F?
Neal R. Gross and Co., Inc. 202-234-4433 Page 478 1 MS. PECK: -- packet --
2 MEMBER ALBERTI: Okay, so I'm all -
3 -
4 MR. FONSECA: Does anyone have an
5 F, any of the Board members?
6 MEMBER ALBERTI: There's B. We got
7 rid of, there's B, this is back, back from the
8 beginning. I've got C.
9 MR. FONSECA: Carl Nelson is C.
10 MEMBER ALBERTI: Carl Nelson's C.
11 More organized than I am Mr. Fonseca, I got to
12 tell you. All right, so those are the
13 letters?
14 FEMALE PARTICIPANT: We don't have
15 the letters anymore.
16 MEMBER ALBERTI: I don't have F in
17 here.
18 MR. FONSECA: Well then I didn't --
19 MEMBER ALBERTI: I can't rule on
20 it.
21 MR. FONSECA: You can pull F out
22 then.
Neal R. Gross and Co., Inc. 202-234-4433 Page 479 1 MS. PECK: Perfect. Perfect
2 solution. These are J, the letters.
3 MEMBER ALBERTI: Okay.
4 MS. PECK: And this is F, the
5 affidavit.
6 MEMBER ALBERTI: Okay, so this is?
7 MS. PECK: The affidavit of Abigail
8 Nichols.
9 MEMBER ALBERTI: And did you have
10 this at the time?
11 MR. FONSECA: I have and I think
12 she testified, I don't know why we need
13 affidavits.
14 MS. PECK: Well actually, since she
15 only had two minutes to testify you can
16 actually see what she would have testified
17 about if she had had time.
18 MEMBER ALBERTI: And again, I mean,
19 I will have to, I will accept this with the
20 caveat that Mr. Fonseca had run out of time.
21 It's his own fault, but there wasn't an
22 ability to cross examine this. So we will
Neal R. Gross and Co., Inc. 202-234-4433 Page 480 1 accept that.
2 MR. FONSECA: What, you know, may
3 I? Let's, I mean, I hate to over lawyer this,
4 but I don't think I have any choice. He had
5 no foundation for entering either Mr. Nelson's
6 affidavit, or Ms. Nichols'.
7 Mr. Nelson clearly had plenty of
8 opportunity to testify, Ms. Nichols less. The
9 problem with an affidavit by definition, it's
10 a sworn statement. These are neither signed
11 nor notarized, so I --
12 MEMBER ALBERTI: I'm not treating
13 them as affidavits in the way you think of
14 them Mr. Fonseca. I taking them in simply as
15 letters from citizens.
16 MR. FONSECA: I just needed to put
17 that on the record.
18 MEMBER ALBERTI: Right.
19 MR. FONSECA: That they should not
20 be treated as affidavits.
21 MEMBER ALBERTI: They are not sworn
22 -- I'm treating these simply as statements
Neal R. Gross and Co., Inc. 202-234-4433 Page 481 1 that were submitted by --
2 MR. FONSECA: Citizens.
3 MEMBER ALBERTI: -- as a letter
4 would be from an individual in the community.
5 MS. PECK: And that's a great
6 compromise.
7 (Crosstalk)
8 MEMBER ALBERTI: And so there
9 wasn't an opportunity to cross examine this
10 and we will give it the weight that it
11 deserves.
12 MS. PECK: Thank you.
13 MR. FONSECA: Thank you
14 MEMBER ALBERTI: All right so with
15 G I think we have. H we have. All right, so
16 I think we're good. I'm going to dump this
17 all on our general counsel and she's going to
18 hate me for it. Okay, so --
19 MR. FONSECA: I'm hoping you're
20 buying her a big dinner tonight.
21 MEMBER ALBERTI: Yes. The rules
22 don't allow that. All right, so I'm closing
Neal R. Gross and Co., Inc. 202-234-4433 Page 482 1 the record. Do either of the parties want to,
2 are the parties willing to waive findings of
3 fact and conclusions of law?
4 MR. FONSECA: Yes, and I suggest
5 you say yes.
6 MS. PECK: Yes.
7 MEMBER ALBERTI: All right, thank
8 you. So I want -- you know, before I do the
9 closing statement, I want to thank everybody
10 for sticking with us and your cooperation, and
11 everybody did a great job, so thank you. You
12 have left us with a very tough decision, but
13 thank you all for coming.
14 Okay, as a board member of the
15 Alcohol Beverage Control Board for the
16 District of Columbia, and according to Section
17 405 of the Open Meetings Amendment Act of
18 2010, I move that the ABC Board hold a closed
19 meeting for the purpose of deliberating on
20 Case Number 13-PRO-00151.
21 This is for 19th and K,
22 Incorporated, trading as Ozio Martini and
Neal R. Gross and Co., Inc. 202-234-4433 Page 483 1 Cigar Lounge for the reasons cited in Section
2 405b(13) of the Open Meetings Amendment Act of
3 2010. Is there a second?
4 MEMBER BROOKS: Seconded.
5 MEMBER ALBERTI: Okay. I will now
6 take a roll call. Mr. Brooks?
7 MEMBER BROOKS: I agree.
8 MEMBER ALBERTI: Mr. Rodriquez?
9 MEMBER RODRIGUEZ: I agree.
10 MEMBER ALBERTI: Mr. Jones?
11 MEMBER JONES: I agree.
12 MEMBER ALBERTI: Mr. Short?
13 MEMBER SHORT: I agree.
14 MEMBER ALBERTI: Mr. Silverstein?
15 MEMBER SILVERSTEIN: I agree.
16 MEMBER ALBERTI: And I agree. As
17 it appears that the motion has passed, I
18 hereby give notice that the ABC Board will
19 hold a closed meeting in the ABC Conference
20 Room today pursuant to the Open Meetings
21 Amendment Act of 2010, and issue an order
22 within 90 days. Thank you all for coming.
Neal R. Gross and Co., Inc. 202-234-4433 Page 484 1 MR. FONSECA: Thank you.
2 MS. PECK: Are they going to be
3 handing this over to the legal assistant?
4 MEMBER ALBERTI: I will make sure
5 that we get to this as part of the record.
6 Okay, thank you.
7 (Whereupon, the hearing in the
8 above-entitled matter was concluded at 8:31
9 p.m.)
10
11
12
13
14
15
16
17
18
19
20
21
22
Neal R. Gross and Co., Inc. 202-234-4433 Page 485
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434:17 438:10 80:21 86:4 193:2 248:15 421:14,20 422:16 Nichols 13:14 439:2 445:15 209:16 217:7,8 neighborly 237:1 422:20 423:1,9,14 236:3 325:5,12 449:13,16 452:11 226:6 238:9 neighbors 79:13 423:18 424:8,13 432:1 437:2,5,9 460:15 252:14 257:3 177:5 180:21 424:20 425:1,5,8 437:15,15,21 music's 266:21 291:1 298:9 191:10 202:3 425:22 426:3,10 439:3,8,11,15 312:16 304:20 363:21 220:13,19 228:17 426:15,21 427:15 440:1,5,11,15,17 mystery 461:9 364:1 365:21 236:2,8 239:1 427:17,22 428:3,5 441:6,12 442:12 366:11 368:13,14 251:2 273:12 428:8,13,18 429:2 442:20 443:1,10 N 369:20 370:4,5,16 285:2 306:15 429:5,7,14,20 443:16,20 444:2,6 N 58:22 414:9 392:9 401:12 309:22 317:17 430:10,13,16,21 444:9,12 445:5,14 462:21 445:12 461:4 321:11 335:18 431:2,4,11,14,21 445:19 447:3,17 N-E-L-S-O-N 462:14,17 479:12 458:20 433:1,6 434:12,21 448:17 449:5,8,22 355:3 needed 130:14 neither 480:10 435:4,10,20 450:11,12,14 N-I-C-H-O-L-S 480:16 Nelson 10:6 100:13 438:22 441:2,16 470:12,13 477:3,5 437:16 needle 95:6 98:17 354:11,18,21 468:8 469:13 477:6 479:8 480:6 N.W 1:13 2:6 19:22 needs 9:8,9 133:13 355:2 359:18 476:5,12 478:9 480:8 25:2 33:5,7 34:6 133:16 375:9 361:21 362:8 480:7 NICK 1:16 58:22,22 470:11 365:2,5 366:21 Nelson's 13:7 477:4 night 10:5 143:13 nail 292:11 negative 163:17 367:2 368:4 478:10 480:5 172:10,16,22 name 2:13,18 15:13 421:18 422:14,18 369:14 370:15 network 148:21 182:14 214:18,22 25:17 37:7 61:1 455:8 371:7,11,14,18 never 3:2 27:6 32:6 247:9 304:20,22 85:12 175:18 negotiate 12:4 71:6 372:4,8,11,16,19 45:8 53:7 181:22 314:16 321:15,20 227:18,20 236:17 238:4 373:4 377:21 185:20 191:3 322:19 326:10 298:16,18 354:22 negotiated 244:15 378:14,21 379:20 212:18 213:11 341:20 343:18 437:13 318:12 382:10,15,21 233:2 239:14 344:22 355:21 named 235:10 negotiating 71:8 383:3,10 384:2,13 249:22 290:7 356:3,13,14,14,15 334:9 84:12 228:21 384:21 385:3,6,18 292:15,18,19 357:6 358:8 names 90:16 307:22 386:3,10,15,18 293:1 297:2 370:10 393:13 335:10 negotiation 62:14 387:21 388:4,11 310:17 320:9 413:20 415:13 Nando's 335:1,4,6 63:12 243:8 299:4 388:14,20,22 325:20 326:1,11 420:3,9 438:5,9 narrow 34:8 324:19 389:12,16,19 335:16 417:5 442:14 450:12 nature 87:11 negotiations 228:3 390:3,15 391:1,5 423:3 433:9 450:4 nightclub 173:22 153:19 156:9 243:18 245:3 391:9,14,18,21,22 450:7 174:2 157:3 274:1 345:9 435:13 392:3,3,3,4,6,7,12 nevertheless 12:22 nightclubs 173:4 397:4,11,13 neighbor 181:1 392:18 405:15 new 51:4 79:9 173:16 nauseating 345:11 184:14 210:18 406:1,2,6,9,12,15 221:12 237:10 nightlife 337:11 near 100:11 102:3 212:7 213:1 406:19 407:2,19 254:18 282:11,13 nightmare 333:17 114:18 385:12 272:10 458:17,19 408:1 412:19 302:5 304:13 nights 194:6 329:7 nearby 42:6 52:13 neighbor's 275:3 413:16,22 414:4 305:4 309:15 358:16 367:11 52:14 453:20 neighborhood 61:5 414:13 415:4,9,15 317:20 324:12 441:13 nearly 156:17 192:21 235:20 415:21 416:5,13 326:14,20 333:20 nine 358:15,16 necessarily 128:21 236:18 251:14 416:17 417:14,15 339:9 423:12 414:19,21,22 necessary 6:9,11 272:5 273:13 417:20 418:2,5,14 451:17 452:17 nobody's 96:5 183:11 254:7 284:19 326:3 419:5,7,10,13,18 459:1 462:21 113:11 308:8 300:13 473:2 392:15 474:8 419:20 420:6,11 news 236:15 noise 6:17,18 7:13 need 4:2 5:17 32:16 neighborhood's 420:14,19 421:14 nice 109:7 8:8,20 9:2,5 10:7
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10:13 11:11,18,21 340:4 341:22 406:20,22 437:17 124:10 138:14 11:7 53:2,4,5,18 12:11,22 13:15,16 342:17,18 343:2 notarized 480:11 188:6 254:13 54:1,15 61:11,20 14:3 20:8 21:12 344:11,12,15,18 note 2:20 36:21 320:18 362:16 62:2 69:4 117:3 22:14 26:15 28:3 345:20 355:14,21 106:8 384:19 367:10 368:22 242:14,22 301:5,5 30:14,21,22 45:9 356:12 357:12,15 401:4 410:3 370:3,5 378:19 301:9 360:11 45:16 50:14 56:4 357:21 358:1,12 414:15 420:21 418:5 422:1 363:21 364:8 56:14 58:21 59:14 358:20,22 362:4 425:17,18 427:13 nut 9:1 373:8 394:3,8 59:16 68:15 70:4 369:15 370:6 notebook 192:1 NW 1:7 395:3 400:11 70:14 71:18 72:2 371:5,13 387:19 noted 33:12,20 401:4 73:1,11,13 74:7 388:7 389:3,7 50:2 147:21 O objections 69:7 74:16,19 75:13 394:18 399:1,3 157:22 158:8 o'clock 143:13 193:5 298:6 300:3 78:2 80:16 83:11 404:9 413:20 401:5 425:15 144:20 145:20 363:19 364:10,11 87:4 89:3,4,10,11 421:17 422:3 428:21,22,22 147:11 194:12 380:3 381:19 91:17 92:2,3,12 426:13 432:1,2,3 notes 394:11 195:1 214:2,18,21 400:8 413:12 92:14 93:4,8,14 432:14,20 437:22 notice 132:13 164:4 237:20,21 322:10 468:9 471:18 94:5 95:13 99:3 438:15,16 439:5 415:16 463:19 341:13,14 343:18 objective 126:2,5 104:10,12 106:17 440:6 441:18 483:18 457:17,17,17 127:11 136:22 107:6 110:5 442:8 444:4,13 noticeable 105:1 O'Connor 60:12,14 137:17 138:18 117:21 119:21 447:18 448:13,14 noticed 147:19 60:19,22 61:3,4 158:22 159:3 124:19 129:16 448:19 451:12,13 276:15 302:8 61:10 62:17 63:3 258:11 294:4 132:14,21 143:6 453:2,7 454:14 noticing 164:6 63:6,11,18,22 316:17 143:12,16 144:5,9 455:1 456:3,15,18 noting 418:21 64:2,8,13,19 65:1 objectives 128:5 144:18,19 145:4 458:6,7 459:3,19 469:12 65:4,11,14,17 observant 420:22 145:18 146:22 463:16 471:7,15 November 42:22 66:1,5,12,16,21 observation 322:20 147:3 148:16 474:9 68:6 69:14 74:14 67:4 68:17,22 449:13 151:14,18 152:6 noises 50:17 88:20 414:9 415:8,18 69:3,13,18,21 observations 17:13 152:11,19 153:4,9 89:1,3 370:18 430:8 444:6,7 70:3,6,11,19,22 17:20 27:3 44:9 155:9 156:11 373:1 459:19 71:3,10,17,22 44:10 321:3 157:2,7,8 163:19 non 456:21 number 2:4,7 7:1 72:6,12,20 73:16 observe 27:21 164:13,19 170:11 non-expert 373:10 15:20 18:3 19:2 74:11,21 75:20 300:9 171:3,9,15 172:21 373:17 21:1 45:14 57:2 76:2,4,12,20,22 obtain 124:12 222:6 223:4 non-hearsay 57:14,18 68:1,5 77:11,22 78:11,18 obvious 152:9 234:12 238:19 474:12,14 68:13,14 85:21 78:22 79:5,8 80:2 343:6 453:16 241:12 292:11 norm 57:11 138:15 146:3,19 80:5,8 81:2,5,7,15 obviously 81:19 293:8 294:6 303:9 normal 179:22 148:5 183:20 82:8,11,18 83:8 148:2 319:13 303:13 306:20 233:16 380:21 185:12,15 190:4 83:14 84:2,9,20 320:4 338:22 308:17 309:9 normally 170:16 203:18 212:8,8,11 304:16 345:5 347:21 311:11,13 312:8 243:6 244:14 212:13 259:9,11 O-N-S-E-C-A 2:14 393:8 399:2 314:21 316:2,8 north 18:8 120:17 259:15,17,17 oasis 284:1 450:20 472:18 317:18 318:14,16 406:19 307:15 360:20 oath 213:10 occasion 59:9 100:5 320:8 325:12 north/south 332:19 365:7 370:1 371:1 object 10:16 11:4 176:15 378:20 326:10 328:1,3,3 northbound 18:8 372:12,13 379:22 300:10,10 368:7 449:15 450:3 328:4 329:13,19 northeast 58:5 382:12 468:19 394:9 474:1 Occupancy 38:11 337:16,16,19,19 120:17 121:16 482:20 475:21 38:15 229:21 337:22 338:3,6,8 northwest 37:12,16 numbering 301:1 objecting 361:2 occupation 61:2 338:16,22 339:1,6 228:1 379:11 numbers 91:4,8,10 objection 10:15 85:13
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