Analyzing ABRA Phase 2 Violations – A Hierarchy of Violations Becomes Clear

Image by Mr.TinDC licensed under Creative Commons.

This week, the Mayor and ABRA posted that to date during Phase 2 it had fined four bars/restaurants (including two covered here last week), and issued verbal or written warnings to more than 40 of them as of July 23rd for violations that took place during the first month of phase 2. Barred in DC has obtained copies of the investigative reports for all four fines and a couple other ones, and has found some interesting observations. Note that some of the “violations/observations” listed in ABRA’s chart don’t match up to the reports I received (I used the report info for those I had) so take some of the info in the chart with grain of salt. DCIst wrote about some of these as well.

[Note: On 7/27, ABRA released their policy guidance that notes what they will be charging for each of them. They match up closely, and I’ve noted them before.]

1. Serve alcohol without prepared food – likely $1,000 fine.

ABRA: 1st offense: $1000 (no warning); 2nd: $2000
Although most had other violations, all four spots fined had let people order booze without the table ordering a least one prepared food item, as required. Some weren’t even offering food at all at the time. Only one spot with this violation received a written warning, but that occurred the first weekend of Phase 2, where only warnings or education were issued.

How did ABRA determine this was an issue? For 3 of the 4 spots, it looks like they did this based on visual observation. For Marleny’s, a Salvadoran-Mex spot in Mt Pleasant, the investigator further asked the owner to provide copies of the guest checks so ABRA could review. The owner had explained that “most of her customers do not want food, and only want alcohol.”

I’ve been told that many spots in DC have not been enforcing this rule but ABRA clearly is trying to, so good idea to start doing this to avoid a $1000 fine or worse.

As a reminder, each spot open must offer a food menu with at least 3 prepared food items (pre-packaged snacks like a store bought bag of chips do not count) at all times open. One food item must be purchased per table. Food trucks can be used.

The rationale for this rule and the importance of this is clear: bars are generally considered some of the highest risk activities during COVID. Although requiring sitting mitigates this a bit, bars are designed for the consumption of alcohol-and it doesn’t take a pubic health expert to recognize that more alcohol people drink, harder for them to adhere to the rules and adds the difficulty of spot being able to enforce the rules. Many states have closed bars due to the pandemic; NY state explained that such rules are designed

to ensure that patrons are enjoying a sit-down dining experience among a small group with drinks, i.e. a meal, and not a drinking, bar-type experience.  A drinking, bar-type experience often involves or leads to mingling and other conduct that is non-compliant with social distancing and the use of face covering and is therefore not yet a safe activity during the current health emergency.

Since there is no legal definition of a “bar” in DC, and to allow all spots to work on the same footing, ABRA came up with this menu/food requirement. It’s not perfect since you don’t have to offer much to be compliant (unlike NY state which is requiring substantial meals like sandwiches/hot dogs at a minimum for most spots except breweries/distilleries.

2. Serving alcohol after midnight – $1000

ABRA: 1st offense: $1000 (no warning); 2nd: $2000

Currently, bars/restaurants cannot serve alcohol past midnight. No one can be on the premises eating/drinking after that (unless spot w/o liquor license), though carryout/delivery of food only can continue. Carryout/delivery of booze also ends at midnight.

About 13 spots were cited for this violation; all of them were issued a written warning (but this will change).

The rationale for this early closing is not because coronavirus only comes out after midnight, like some myopic people keep saying. It’s similar to why food is required-late hours are usually associated with bar-like environments and people who are out in public after midnight may be more impaired and harder to ensure they are following the rules. Also limiting the amount of hours necessarily limits the amount of time people who don’t live with each other can spend in relatively close proximity. Of course, this is not perfect either but public health rules are about mitigation of risk, not hyper-targeted rules.

A violation after a written warning is likely a fine. I wouldn’t be surprised if this conduct is fined in the future.

Note that offering entertainment (like live music or DJ) will be $1000 (no warning permitted) for 1st offense; $2,000 for 2nd offense.

3. Certain other violations are likely to lead to a written warning.

A few other less common violations are also considered more serious and come with at least a written warning:

  • Patrons not seated as required (3 spots cited)
    • ABRA: 1st offense: $1000 (warning permitted); 2nd: $2000
  • Patrons allowed to order/sit at bar where bartender is working (4 spots cited)
    • ABRA: 1st offense: $1000 (warning permitted ); 2nd: $2000
  • Failure to register outdoor seating if using something not currently allowed (1 spot cited; free and relatively easy)

4. Other violations have so far generally only led to verbal warnings.

Verbal warnings are more education than anything. Verbal warnings are usually being issued for (when other violations listed above are not present):

  • Music not at a conversational level (about 12 spots cited for this)
    • ABRA: 1st offense: Verbal/written warning; 2nd: $1,000; 3rd: $2,000
    • Entertainment (live music, DJs, etc.) are currently not allowed. Background music at a conversational level or lower is allowed.
    • Rationale is likely for two things: 1) outdoor space dining/drinking is allowed in spaces that are normally not allowed with longer hours than normal so intended not to overly disturb neighbors who didn’t have chance to object; 2) louder it is, harder it is to talk without yelling which is confirmed to be more likely to spread coronavirus)
  • Table spacing insufficient (about 12 spots cited for this)
    • Chairs (not just tables) have to be 6 feet apart from chairs on adjacent tables both inside and outside
    • Using plexiglass to separate booths is not sufficient
  • No reservation system (about 3 spots cited)
    • ABRA rules require spots to implement a phone, online, and/or in-person reservation system. Easy to do in-person-similar to wait-list.
    • ABRA: 1st offense: written warning; 2nd: $1000; 3rd: $2000
  • Staff or patrons not wearing masks (2 spots cited)
    • ABRA: 1st offense: $1000 (warning permitted); 2nd: $2000
    • In one instance, this was the only violation and a verbal warning was issued, but this was the first weekend. The other instance-the bar was fined $1000 but there were several other violations. At least for staff not wearing, I suspect this will be at least a written warning in future.

The ABRA report also noted that at least one spot violated the rules by having a DJ (though it was unclear what penalty would entail since other charges) and by hookah (though unclear if ABRA has legal authority (DC Health instead) to cite hookah smoking-though it is included in its guidance.

5. Most of the citations have come from inspections/routine monitoring by ABRA investigators, not citizen complaints.

None of the 6 reports I received (including 4 fines) appear to have come directly from a citizen complaint. Indeed, many of them clearly were issued as part of ABRA’s review of the Adams Morgan open street/steatery as several spots in Adams Morgan were cited. ABRA investigators have been driving around and stopping by certain spots with many places open. That’s not to say citizen complaints may not drive a focus on certain areas, however.

A breakdown ((+) refers to fact that there were other violations present))

  1. No prepared food w/ alcohol
    1. DSF (+) – $1000
    2. Red Lounge (+) – $1000
    3. Lounge of Three (+) – 1000
    4. Marleny’s – $1000
    5. Soussi – written (6/26)
  2. After-hours service
    1. Red Lounge (+) -$1000
    2. Lounge of Three (+) – 1000
    3. Café Milano –written
    4. Ben’s Next Door (+) – written
    5. Residents – written
    6. Empire Lounge (+) – written
    7. Costello’s – After hours
    8. Kiss Tavern – referral to OAG
    9. Luna Restaurant (Petworth) – considered next week
    10. Ben’s Next Door – written
    11. Don Juan – written
    12. Nile Ethiopian – written
    13. Odaly’s – written
    14. 1942 – written
  3. Patrons not seated
    1. Lounge of Three (+) – 1000
    2. Empire Lounge (+) – written
    3. Grand Central – written
    4. Elevate (+) – $1000
    5. Lyve at U (+) license suspension
  4. Bar service while people working at bar
    1. DSF (+) – $1000
    2. Red Lounge (+) – $1000
    3. Lounge of Three (+) – 1000
    4. Next Door – written
    5. Luna Restaurant (+) – $1000
    6. Churreria Madrid (+) – $1000
    7. Smitty’s – written warning
  5. Failure to register outdoor seating
    1. Heaven & Hell – written
  6. Staff not wearing face coverings
    1. District Soul Food (+) – $1000
    2. Right Spot – verbal
    3. Assets – written
    4. Elevate (+) – $1000
  7. Music not at a conversational level
    1. Lounge of Three (+) – 1000
    2. Empire Lounge – verbal
    3. Costellos (+) – written
    4. Empire Lounge (+) – written
    5. DSF – verbal
    6. Barcode – verbal
    7. Heaven & Hell – verbal
    8. Pitchers – verbal
    9. Spacey Cloud – verbal
    10. The Town Tavern – verbal
    11. Retobottega – verbal
    12. Elevate – verbal
    13. Elevate (+) – $1000
    14. Churreria Madrid (+) – $1000
    15. Chi-Cha Lounge – written
  8. Table spacing insufficient/Patrons not social distant
    1. DSF (+) – $1000
    2. Red Lounge (+) – $1000
    3. Grand Central – verbal
    4. Johnny Pistolas – verbal
    5. Joyti – verbal
    6. Meze – verbal
    7. Retrobottega – verbal
    8. Harry’s – verbal
    9. Brooklyn – verbal
    10. Colada Shop – verbal
    11. Mission NY – verbal
    12. Zeppelin – verbal
    13. Luna Restaurant (+) – $1000
    14. Churreria Madrid (+) – $1000
    15. Lyve at U (+) license suspension
    16. Creole on 14th (+) $1000
    17. Dacha Navy Yard – written
    18. MK – written
  9. No reservation system
    1. Tiki TNT – verbal
    2. Zorba’s Café – verbal
    3. Zeba Bar & Grill – verbal
  10. Entertainment
    1. Red Lounge (+) – $1000
    2. Elevate (+) – $1000
    3. Luna Restaurant (+) – $1000
    4. Lyve at U (+) license suspension
    5. Creole on 14th (+) $1000

2 thoughts on “Analyzing ABRA Phase 2 Violations – A Hierarchy of Violations Becomes Clear

  1. Andrew kline

    You really did a great job with this, particularly your articulation of the rationale behind the different requirements.

    Reply
  2. Pingback: Links 8/2/20 | Mike the Mad Biologist

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