[Edited to fix typos and clarify ReOpen DC Committee’s recommendation/big idea re: changing license types]

Today, Mayor Boswer’s ReOpen DC Advisory Group issued a relatively detailed 80 page plan to guide DC as it lifts the stay-at-home order (likely this Tuesday for Friday, May 29th) and “reopens” DC in a four stage process (Stage 1: declining virus transmission; Stage 2: only localized transmission; Stage 3: Sporadic transmission; Stage 4: vaccine/cure). Read a four-byline WAMU/DCist article for more details.

In addition to the incredibly important safety issues (predominant), most relevant for this website was the recommendations for restaurants, bars, and nightclubs.

Restaurants: 1) Open outdoors w/ distancing; 2) Indoor seating up to 50% 3) More than 50% with case-by-case approval; 4) open 100%

Bars and Nightclubs: 1) Closed; 2) Closed; 3) 5 people per 1000 square feet w/ no more than 50% capacity (meaning 20 people max at even bigger spots) 4) open 100%

BUT, as noted in detail by Laura Hayes in an article today, THERE IS NO LEGAL DISTINCTION BETWEEN A BAR AND RESTAURANT in DC (I’ve been saying this for years pedantically but now it makes a difference). Noted liquor license attorney Andrew Kline, who was on a ReOpen DC committee, told me and Laura and that their expectation was that a “restaurant” would generally include any business with a substantial food component. Well, you can throw out a definition that makes a hot dog a sandwich, but there is no way to objectively determine which businesses have a substantial food component and those who do not. Clearly, the 850+ businesses with “restaurant” liquor licenses who are required to provide documentation to ABRA that they sell 40% of their revenue in food (or a certain $$/seat), would qualify, but what about 1) a coffee shop or other establishment that but doesn’t have a liquor license, or 2) holders of tavern (400 spots), multipurpose (45) , and nightclub (35) licenses, majority(?) of which are authorized by DCRA and Department of Health to sell food to eat on premises? These businesses may sell a substantial amount of food and meals but do not have to certify or even keep track of  their food sales to anyone, even themselves. How would a business or DC itself objectively determine what establishments have a “substantial food component”? Look at their menus?  Check Yelp reviews and count how many talk about food v. drinks?

This seems unworkable and untenable for the businesses who could be able to safely open (for staff and customers) but otherwise will be on the brink of ruin if they don’t have the same shot as similar establishments. This dooms literally 1/3 of the spots in DC to likely extinction. In many parts of DC (such as H Street) with a concentration of tavern licenses, not allowing these to open if they have the ability to serve food would leave neighborhoods with massive closures. Mayor Bowser and her Administration need to clearly define the distinction in an objective manner. Kline tells Laura that the first two phases that health officials are emphasizing allowing people to go and sit “to eat food, not necessarily where you go to drink alcohol and socialize.” But you can still goto a restaurant (which most of them serve alcohol) to drink alcohol and socialize, so I’m not sure this actually does anything.

So,here is my attempt to provide my own recommendations for Mayor Bowser:

1. Restaurant should be defined as any establishment that has received a license from DCRA (e.g. restaurant) to serve food on premises

This is clear, already-existing legal definition of restaurant. It includes both spots that don’t or do serve alcohol. It requires no subjective determination of what is a “substantial food component.”

2. All establishments allowed to open for customers to drink and eat should be held to the same standards.

If DC is worried about risky behavior happening, there is no guarantee that this will happen in a restaurant but not in a tavern. Most Sunday Funday Brunchday start (and sometimes end) at restaurant licensees. All places that are open will be closely scrutinized not only by DCRA, DOH, and ABRA, but they will be scrutinized by the general public.

If you are banning dance floors, standing, live music, etc., there’s no reason why bars and even nightclubs that have food be allowed the same ability to stay viable with outdoor seating and eventual 50% capacity as those with restaurant licenses if all operate under the same restrictions. It’s clear to me that’s why many states have banned bars in early phases, but that ignores that many bars in DC have tables and serve really good food.

Although many people will not like me even suggesting this, if it’s really a concern that you don’t want people just going out to drink with friends, do what several states have already done and require that food be purchased if alcohol is served to a customer. This would be consistent with the takeout/delivery alcohol flexibility but would allow taverns, nightclubs (DC9), and multipurpose facilities (The Hamilton) the ability to stay viable.

3. If you find a workable standard for “substantial food component,” that excludes swath of licensees, allow liberal reclassification of licenses.

If somehow you are able to RBG a workable standard for “substantial food component” and for some reason restrict this to only restaurants and maybe some taverns on a case by case basis,  you must allow all liquor-serving establishments the ability to reclassify themselves temporarily to a restaurant liquor license, even if that means they will have to partner with a food truck or ghost kitchen to provide meals. The ReOpen DC committee suggested “Flexibility for food service establishments to change the type of license they hold within the food service category” but the  term “food service” is a DCRA basic business license term which seems to imply it’s suggesting that other types of licenses like caterers, deli’s, and food products can switch to restaurant; this should clarify that ABRA licensees can move to another license if it’s necessary to be open as a “restaurant.”

You still have time to make the guidelines and the order right. Make good use of it.