ANC6B’s Last Ditch Battle Against Hank’s Oyster Bar on Neighbor Flooding Issue

Hank's Oyster Bar at 633 Pennsylvania Avenue, SE

Hank’s Oyster Bar at 633 Pennsylvania Avenue, SE

Here's what happens to Hank's neighbor when it rains.

Here’s what happens to Hank’s neighbor when it rains.

DCRA "handed out strongly for penalty"... a $100 fine.

DCRA “handed out strongly for penalty”… a $100 fine.

ANC6B’s Last Ditch Battle Against Hank’s Oyster Bar on Neighbor Flooding Issue

City Fails Capitol Hill Resident Flooded by Storm Run-Off

by Larry Janezich

CHC readers may remember a post from last August touting the martialing of city forces to address a flooding problem suffered by a Capitol Hill resident at the hands of Hank’s Oyster Bar and two adjacent businesses.  (See here:  The article expressed hope that after many years of effort, the resident’s concerns were going to be addressed.  Five months later, not only has the resident found no relief, the resident’s last ally – ANC6B – is facing a last ditch stand before the city’s Alcohol Beverage Regulatory Administration (ABRA)  to try to get a city agency to address the problem.

Ronald J. Tomasso, resident of D Street, SE, whose property backs up to Hank’s Oyster Bar on Pennsylvania Avenue, SE, suffers flooding every hard rain, from Hank’s drainage downspout which is disconnected from the combined storm/waste water sewer behind the restaurant.  Background on how the drain became disconnected was covered in the previous blog post, but date back some ten years to a time when – according to Tomasso – an addition was constructed illegally behind the building now housing Hank’s.

Tomasso has appealed to Hank’s for four years – since 2012 – to fix the problem though his efforts to find relief date back much further.  Hank’s has made some gestures which involved assessing the problem but has made no move to remedy it.

ANC6B’s ABC Committee, under Chairman Chander Jayaraman, has been active in using applications for new liquor licenses and liquor license renewals as leverage to rein in restaurants causing quality of life issues for nearby neighbors.  Restrictions on operations are routinely written into a Settlement Agreement under which restaurants agree to certain operating procedures as a condition of receiving a license.  Commissioner Diane Hoskins has led the effort to protest the renewal of Hank’s liquor license to bring pressure on the restaurant to provide relief for Tomasso.

Under threat of an ANC6B protest of their liquor license renewal over the issue, Hank’s appeared to be amenable to mediation on the matter.  Those negotiations came to nothing and fell apart a few weeks ago.  ANC6B moved forward with its license protest and Hoskins filed a list of exhibits she intended to use in the case against Hank’s.  Hank’s attorney, Andrew Kline, (See here: filed a motion with ABRA to exclude seven of the 11 exhibits Hoskins filed – including testimony from Tomasso – citing issues of timeliness and relevance.  Last week, ABRA heard arguments for and against the motion to exclude the exhibits.

Judging from documents filed with ABRA, Kline’s main point is that flooding has nothing to do with the serving or consumption of alcohol, and the issue is outside the preview of the board.

Hank’s admits there is a problem.  Kline’s filings with ABRA state:  “Unfortunately, there is an issue with storm water drainage on and around the Licensee’s premises and Tomasso’s residence which effects (sic) the entire neighborhood.” And, “The Licensee has [taken steps to remedy] despite a lack of clarity as to whether it is the Licensee’s or its landlord’s responsibility.”

According to a memo submitted to her fellow commissioners, Hoskins responded to Kline, saying to ABRA that the issue of timeliness is unfounded and that the unique characteristics of the case, including the length of time involved and the “absolute unwillingness” of the applicant to deliver a remedy warrants consideration under DC Code which explicitly states ABRA’s authority to consider violations of the laws of the District when considering license renewal.

She cited a DCRA’s inspector’s report finding violation of the law in having a drain pipe disconnected from the storm sewer.  The penalty was a $100 fine for the building owner.  Hoskins told CHC, “It was a challenge to get DCRA to conduct the inspection and took numerous follow-ups for the Agency to finally issue the citation.”

Kline’s assertion regarding steps taken by Hanks to remedy the problem and his claim of lack of clarity regarding responsibility seems both undeservedly self-serving as well as disingenuous given the length of time and lack of progress.  What does seem clear is that the city has failed a member of its community as it often does when commercial interests conflict with the interests of residents.

ABRA will rule on Kline’s motion to exclude next week, and ABRA, as CHC has reported before, tends to give the benefit of the doubt to applicants and short shrift to the “great weight” accorded to ANC opinion by DC law.  The ABRA hearing on the ANC’s protest of the license will follow sometime in January.

ABRA could decide to admit the evidence offered by the ANC act within what appears to be its authority vis-à-vis consideration of compliance with DC law as a criterion for renewing a license and accomplish what DCRA is unable or unwilling to do:  provide a relief for Tomasso.

If ABRA doesn’t, Tomasso’s only option would seem to be to file a lawsuit to get relief for something that Hank’s – or Hank’s landlord – should do as a matter of course and without hesitation in the interests of being a good neighbor and in the interests of being a member of the Capitol Hill community.

Community members must wonder why they should patronize restaurants which demonstrate their indifference to being good neighbors.


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14 responses to “ANC6B’s Last Ditch Battle Against Hank’s Oyster Bar on Neighbor Flooding Issue

  1. Craig D'Ooge

    I don’t understand…how hard can it be to connect a downspout to a drain? What am I missing?

    • ANC6B Commissioner Diane Hoskins suspects that the rational for this is that Hank’s interior may flood when storm drains are properly connected as legally required during large wet weather events that exceed the capacity of their existing infrastructure. If their pipes are full from storm water or even backing up, its likely they cannot drain their kitchen sinks, dishwashers, toilets, etc.

  2. Tom

    Where is Councilmember Allen on this? Will he step up for a constituent? Or does he depend on restaurant owners for monetary support when he runs?

    • John

      Business owners are constituents as well, and they typically contribute far more tax dollars than a resident does. Politics is tricky…

      • Tom

        John, I agree that business owners are constituents and contribute tax dollars. That is only the starting point of this discussion, though.

        When the facts about who is harming whom are as clear as they seem to be here, then a very costly injustice is being done to the adjacent homeowner. The cost of a lawsuit would also be considerable, and the business in this situation would try to make it as costly as possible by filing all sorts of delaying motions, if history is any guide.

        So if a council member decides not to intervene or take a public position in favor of such an aggrieved homeowner, he is sending a signal that powerful business owners can expect not just no consequences from causing harm to neighbors, they can expect no public approbation from elected officials.

        In disputes that seem so clearly harmful to those with so much less power, I want a council member who will side with the less powerful. Who else can help them?

      • anon_1

        so what? they have no more rights than neighboring residents. their business does not override the regulatory requirements for managing waste water. It’s not their right to dump their problem on their neighbors.

      • John

        Tom — The scenario that you have recapped is, in fact, what the courts are meant for. It would be unwise for an elected official to intercede in a private dispute between two private parties. Judges, who do not have the same responsibilities to campaign contributors as Council members, are well-positioned to do so.

      • Tom

        John, when you say that is “what the courts are meant for,” you fail to acknowledge that:

        1. it costs a lot of money to sue;
        2. businesses usually have more money than do residents; and
        3. businesses typically use delaying tactics and procedural motions to drive up the cost of suing them.

        So it is still unequal, and most residents don’t have the money to see a lawsuit all the way to the end.

        The reason aggrieved residents appeal to local politicians is because public shaming by such politicians may be their only practical recourse against abusive business owners.

        I’m not anti business, by the way, in case you might have thought so. Just pro fairness.

      • Tom

        John, when you say judges “do not have the same responsibilities to campaign contributors as Council members,” you seem to be implying that Council members have to give some sort of quid pro quo to contributors purely because they get money from them.

        So where does a council member’s responsibility to ordinary constituents lie, if the politician’s “responsibility” to the donor of campaign cast includes not interfering when a business owner floods a neighbor’s basement every time it rains hard?

        Does a homeowner, whose house is flooded regularly because a restaurant won’t fix his plumbing, get pushed aside simply because a council member doesn’t want to offend a contributor? That is a pretty sad situation, if you ask me.

        We know money dominates politics on a national basis. You imply that money dominates even at the ward level, and you seem to defend that, when you say that a council member has a “responsibility” to his donors.

  3. Liz eby

    Let’s target the landlord Since the ABC license is issued to “the building,”. Not Hank. It’s a plus for the landlord, the landlord is the person investing in the community, Hank is just a tenant. Hanks close see, the landlord remains an so, potentially does the flood.

    • anon_1

      Landlord would rather fight individual residential home owner neighbor than more heavily vested commercial lessee. If corrective action resulted in plumbing/sanitation issues for Hanks the lessee would have clear legal recourse because they can demonstrate significant lost revenue. Hanks would have even greater incentive for action than the neighbor and grounds for withholding rent in escrow until resolved. The landlord would rather have this fight with the neighbor than tenant. Hanks would probably prefer status quo vs a persistent plumbing/sanitation issue.

      However, if the improperly handled waste water is affecting its business then Hanks should side with the neighbors and seek full remediation from the owner. If Hank’s closes I don’t foresee another restaurant tenant interested in the space given the known indifference to plumbing/sanitation issues of the owner — that’s heavy risk to assume. Hanks has passively sided with its landlord instead of just being on the right side of this issue. They’re ok with status quo and only their the landlord shares that position.

      Other restaurants on this block manage storm drains without incident to neighbors. This isn’t an intractable problem.

  4. Charles Allen and the mayor’s office were helpful in getting the attention of DCRA after a lot of effort, but that is where it really gets to the nub of the problem. DCRA was not responsive, was not organized, not on top of what the job was, and then after literally years of failing delivered a $100 fine. This is like 0.0025% of the rent on the property. Its one meal for two at Hanks.

    I think ABRA is pretty captive to the industry but if you have ever had to go get a license from them you would say they cater to no one. Diane and Chander are doing great work pushing this case. Its success may be exposing the collective failure of the agencies to deal with something so obvious and well documented.

    On top of all this disappointment is the complete failure of the restaurant to work as neighbors to solve the problem. All these problems can be solved if they chose to engage. But they chose to ignore the problem for years and then lawyer up when the ANC got legitimately fed up.

  5. Tom

    Well, one thing we could do would be to take out restaurant business elsewhere. I’ll start this: I pledge not to go to Hank’s until they resolve this favorably.