GLAA testifies against regulatory abuse

TESTIMONY FOR OVERSIGHT HEARINGS
DEPARTMENT OF CONSUMER & REGULATORY AFFAIRS

D.C. Council Committee on Consumer & Regulatory Affairs
FEBRUARY 10, 1998

Mr. Brazil, Members of the Committee, and Fellow Citizens:

My name is Rick Rosendall. I am President of the Gay & Lesbian Activists Alliance of Washington (GLAA), the oldest continuously active gay and lesbian civil rights organization in the country. With me this afternoon is Dr. Franklin Kameny, the father of gay political activism in the District and a pioneer nationally.

We have had considerable problems with the Department of Consumer and Regulatory Affairs in the last couple of years, but today we want to focus our attention on three subjects:

  1. the recent, out-of-the-blue crusade by the Zoning Administration against video stores that carry adult titles;
  2. some odd policies at the ABC Board; and
  3. a proposed statutory change that will end the absurd series of arrests of people charged with the "crime" on drinking on their own front porches.

We were as startled as anyone a few weeks ago when the DCRAís Zoning Administrator handed down an opinion that defined any retail video store as a sexually oriented business establishment if more than fifteen percent of its revenue is derived from the sale of adult videos. This arbitrary and capricious ruling, which DCRA bureaucrats seemed more than eager to enforce immediately at the expense of their other, oft-ignored responsibilities, threatens to shut down most if not all of the roughly two dozen video stores in the District that were targeted in the appendix to the January 29 Opinion of the Zoning Administrator. Since the outlets of the national chains by and large do not carry adult titles, the DCRA ruling threatens to deprive D.C. consumers of their ability to purchase such videos anywhere within our borders except at a handful of places.

We object both to the procedure and the substance of this new DCRA policy. At the procedural level, we believe DCRA at the very least should have published this new policy in the D.C. Register as a proposed regulation so that the public would have an opportunity to comment on it. It seems as though the Zoning Administrator issued this ruling in the absence of any public outcry whatsoever about video stores in the District, aside from one very special case in upper Northwest. In this context we are very pleased to see the February 3 letter that you, Mr. Brazil, and Council Chair Linda Cropp sent to DCRA Director David Watts asking him to "delay the implementation of these regulations on existing businesses that have been operating without any complaints, until there has been an opportunity for the affected businesses and communities to comment on these newly established standards."

Even more importantly, the substance of this proposal is incompatible with the fundamental American value of freedom of expression. We would object even if existing video store outlets are "grandfathered" in because we donít want those arbitrary standards applied to new outlets, either. The notion that the First Amendment may be casually tossed aside because of alleged "secondary" or "neighborhood" effects of businesses offering adult materials is a backdoor assault on the principles of individual freedom and consumer sovereignty. The government has no business squandering our limited public resources policing the private entertainment choices of the citizenry. The government should respect the old capitalist system of allowing the market to work. We particularly object to the DCRA regulators' comparing the District to a suburban jurisdiction like Prince Georges County. As an urban center, an international city, and a center of tourism, the District clearly is much more like New York City than P.G. County. Many of us came to the city from the suburbs precisely to escape suburban standards.

Our second subject for a brief discussion this afternoon is a policy apparently in effect at the ABC Board that results in the automatic suspension of a liquor license for any nightclub or bar that has experienced two incidents involving violence in or near its premises. We first encountered this policy when Wet/The Edge, two places in Southeast that share ownership, a roof, and a liquor license and that feature a substantial gay clientele on some but not all evenings, lost its license towards the end of last year because of several incidents that happened on their non-gay evenings.

We object to an automatic suspension on several grounds. It needlessly penalizes establishments that are in fact fulfilling their responsibilities to maintain the safety of their customers. It discourages businesses from calling for police assistance when trouble is brewing. It inconveniences customers, deprives employees of their livelihoods, and diverts tax funds from District coffers. It allows the ABC Board to pretend it is doing something to increase public safety when in fact it is doing nothing but posturing. We say the best way to cut down on crime in and around bars is to find, arrest, and convict the perpetrators. Only bars that are found, after full due process, to have been guilty of some kind of negligence in such incidents should be penalized. The current ABC approach looks like the kind of public safety philosophy that says the best way to fight crime is for everyone to stay home, locked tightly behind their doors. This is just surrendering our city to the crooks.

Our final topic is more congenial and positive, as we bring forward not merely another complaint about inappropriate D.C. government practices but an actual solution. All of us remember the arrest several months ago of a woman who has become universally known as "The Chardonnay Lady." On the evening of last August 19, Ms. Erin Hatch, who had just completed a two-year stint in the Peace Corps, was sitting on the front porch of her townhouse at 18th Street and Riggs Place, enjoying a glass of chardonnay. Suddenly she and two friends drinking beer with her found themselves under arrest and handcuffed by two police officers for drinking in public. Members of the Metropolitan Police Department have made a number of other similar arrests, all in the name of "zero tolerance." Such arrests have prompted GLAA, among others, to dub this policy "zero intelligence" instead, because they represent such an absurd misallocation of the overly-stretched resources of our public safety system. It seems as though the artificial padding of arrest statistics has become an end unto itself to demonstrate the Districtís commitment to bringing down crime.

But the odd fact remains that drinking on oneís own front porch is, at least in much of our city, indeed a violation of the Districtís law against public drinking. So we simply propose to change the law so that such innocent behavior is no longer illegal.

We at GLAA are delighted that our own Frank Kameny has taken up this cause. Last week, he sent each of you on the Council a package containing a full and fascinating history of how this situation can be traced back all the way to 1791 and to the personal intervention of none other than George Washington himself. To make his very long story short, it seems that the District (at least within the bounds of the original Federal City) owns not only the streets and the sidewalks but also the front lawns of the residents right up to (and sometimes into) the house itself. Thus, you are in what is legally public space the instant you step out of the front of your house, or even when you step into the bay areas of your front room. Hence, if you have a drink in your hand on your own porch, you are indeed drinking in public — at least in the eyes of the law.

Dr. Kamenyís simple solution on behalf of GLAA is to amend the Districtís law on public drinking so that drinking on your own front porch or next to your bay window will become legal. Proposed language for what he calls the "Front Porch Drinking Act of 1998" was included in the package Dr. Kameny sent you last week.

Since such a bill will presumably be referred to this committee, we invite each and every member of this committee to become a sponsor of this sensible corrective legislation. We cannot imagine there will be much opposition, although fine-tuning may be in order.

Let our battle cry be: "Rehabilitate the Chardonnay Lady — Now!"

Thank you for your attention. We would be glad to answer any questions you may have.

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