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On issues including handguns, needle-exchange programs, and medical marijuana, D.C. officials often get drawn into political turf wars with their federal overlords. But on the subject of alcoholic-beverage control, the District enjoys virtually unbridled autonomy.
Thanks, of course, to the 21st Amendment of the U.S. Constitution. Enacted in 1933, the Prohibition-repealing provision leaves control of “intoxicating liquors” solely up to the states. And in this instance, the courts have generally affirmed D.C.’s statehood.
Emboldened by home rule over booze, city regulators have taken full advantage, imposing all sorts of rules on the local liquor industry—from restricting those handy to-go cups to outlawing, according to D.C. regulations, “[a]ny statement, picture, or illustration referring to Easter, Holy Week, Mother’s Day, ‘Santa Claus’…or a religious holiday or religious symbol, which promotes the sale, service, or consumption of alcoholic beverages.”
But is there a limit to the District’s overbearing oversight of potent potables?
Daniel “Hollywood Breeze” Clayton thinks so. When it decides to impose its musical preferences on your neighborhood watering hole, the embattled Northeast nightclub owner says, the city is overstepping its bounds. For eight months now, Clayton has been trying to bust loose from a restriction that the D.C. Alcoholic Beverage Control (ABC) Board attached to his license following a series of reported crimes at or near his place of business on Bladensburg Road, including the shooting of eight patrons outside the venue in August 2003: “No live or recorded Go Go or Hip Hop music is permitted” (“Go-Go: No Go,” 10/03/03).
The District asserts that this kind of beat-specific stipulation is well within the city’s constitutionally mandated authority to regulate alcohol. But Clayton doesn’t care: “I’m suin’ ’em,” he says—and he’s prepared to take his case all the way to Capitol Hill, if need be. “If I have to go to the Supreme Court with it, that’s what I’m gonna do. Y’understand me?”
Clayton’s club—a legendary go-go spot formerly called Breeze’s Metro Club, later known as Deno’s, and currently dubbed Club Rio—isn’t the only venue to feel the ABC Board’s musically attuned wrath. The panel has enforced similar go-go prohibitions on other spots, including Capitol Hill’s Heart & Soul Cafe and U Street’s Between Friends—both of which have since been shuttered. Clayton claims to be the first to challenge the constitutionality of such a genre-specific mandate. And if the D.C. government wants to invoke the 21st Amendment, fine. The club owner’s complaint, filed this past November, invokes not only the First Amendment, but also the Fourth, Fifth, Sixth, Eighth, and 14th.
“This is a constitutional issue,” Clayton says. “It all centers around artistic expression.”
“I would say he has a legitimate gripe,” says censorship expert and recent transplant to the Washington area Eric Nuzum. “If they’re making the decision based on the violence in the club, that’s one thing. But if part of the condition is the kind of music that’s playing, then it becomes a censorship issue.”
Nuzum, author of 2001’s Parental Advisory: Music Censorship in America, has chronicled government- and industry-imposed crackdowns on various forms of music dating back to the ’50s. “This kind of stuff historically is not that odd,” he says.
Back in 1979, for instance, the liquor board in Prince George’s County banned punk-rock groups from playing at the Varsity Grill in College Park after taking issue with, according to a Washington Post article, the genre’s “frenzied hard rock manner,” offensive band names, and reputation for stirring up “trouble, defecating, urinating, and fornicating.”
Like Clayton, the tavern’s owners challenged the liquor board in court, arguing, in manager Dave Zieger’s words, “freedom of speech and all that.” And sure enough, a county circuit-court judge overturned the ban, after finding the board’s claims to be “unsupported by an[y] credible evidence.”
Resorting to legal action isn’t always necessary, however. “It’s kind of surprising just how little music censorship is resolved by a court of law,” Nuzum says. “Usually, it’s resolved in the court of public opinion.”
Yet there’s been little public outcry as the District has increasingly curtailed its own indigenous music. David Boyd, president of D.C.’s Takoma Station Tavern, suggests that’s because go-go is a local phenomenon with no extended support network.
“Go-go is not like rap music or rock ’n’ roll or country,” says Boyd, who’s all but stopped hosting go-go shows at his own venue. “You’re not gonna have a whole lot of activists runnin’ up and down the streets talkin’ about ‘You can’t do that.’ Go-go never took off like any of that stuff. If it did, then you’d have activists comin’ from California. But who’s come down for go-go? Nobody.”
That leaves longtime go-go honcho Clayton to fend for himself. And at the moment, his prospects don’t look very good.
For nearly a year, Clayton tried to live with the ABC Board’s constricting stipulation on his venue’s musical selection. Instead of go-go, he says, “I do Spanish parties. I do my oldie-but-goodie TV show. I do kiddie cabarets. I do wedding receptions. I do gospel shows.” But by September 2004, Clayton was fed up with having to do without the “80 percent of my income” that he had lost to the go-go ban.
That month, Clayton’s lawyer, Andrea Bagwell, fired off a formal letter asking the ABC Board to lift the go-go-and-hiphop restriction. In support of this request, Bagwell also submitted a plan to provide additional security for future go-go shows, including the hiring of two off-duty D.C. cops and four members of the Guardian Angels.
But going the administrative route can take a while. After an initial hearing in November, the board decided it needed more information to act on Clayton’s request. And just last week, the panel convened its third hearing on the matter, taking testimony from both the club owner and opponents who don’t want to see the go-go ban go bye-bye.
D.C. police statistics show that crime in the neighborhood is “dramatically down” since the ban was enacted, as Lt. Vincent Turner told the board on May 25. And some residents don’t want to see it increase. “If the board lifts the restrictions,” Channing Road NE resident Patricia Brown said, “then we are not gonna have tranquility in our community.”
For his part, Clayton wasn’t patient enough to wait while the board waded through all the pros and cons. After that first hearing last fall, he decided to challenge the musical restriction in court—and in a somewhat unusual fashion. Typically, licensees wage their legal battles with the ABC Board in the D.C. Court of Appeals. But Clayton took his claim to the U.S. District Court for the District of Columbia.
“The Court of Appeals would’ve been a District thing,” says Clayton, whose 11-page complaint blasts the ABC Board’s ruling as violating his “freedoms of expressions and speech, and the right to earn crime free earnings.”
“The District government cannot rewrite the Constitution,” he says. “What this board has done is, they’ve violated my constitutional rights.”
In addition to seeking millions of dollars in damages, Clayton’s suit contains an odd request: Each of the eight defendants named in the complaint should be “awarded time in imprisonment.”
The city, of course, isn’t forking over one single dollar or imprisoning one single politico without a fight. In January, D.C. Attorney General Robert J. Spagnoletti formally asked a federal judge to dismiss Clayton’s complaint, calling it “extremely confusing and unclear.”
Maybe that’s because the club owner isn’t so experienced when it comes to writing up his own court papers. “I have to act as my own legal counsel,” he explains, “because the legal counsel that I had, I don’t have the money to pay ’em.” Indeed, a March 24 bill indicates that Clayton still owes Bagwell’s firm, Harmon, Wilmot, & Brown, more than $9,000 for her prior legal work.
According to Spagnoletti, the current lack of representation is pretty obvious: Clayton’s suit, the city’s top attorney argues in his motion for dismissal, “does not coherently cite to any legal principles to support federal jurisdiction or [his] claims.” Besides, Spagnoletti maintains, “the Board acted within its statutory authority as provided by the Twenty First Amendment,” which “provides the state with absolute control over the regulation of alcohol.”
But that absolute control doesn’t empower the city to forget other constitutional principles, says Jamin Raskin, professor of constitutional law at American University Washington College of Law. “The 21st Amendment does not give the city the right to discriminate against people in the liquor business based on their political expression or ideas,” he says. “Music is covered by the First Amendment. People have the right to play music regardless of what the government thinks about it.”
The only “ambiguity” in this case, Raskin says, deals with the administrative posturing of the board’s decision. “I have no doubt it would be unconstitutional for the city to pass a law saying that bars and restaurants can get a liquor license as long as they don’t play hiphop music,” he says. “The question is whether the city may have selective authority to withhold a liquor license on the basis of music in a particular case. That might be a closer question.”
As for Clayton’s inexperience in the courtroom, Raskin says not to rule him out just yet: “The federal courts have made clear that just because your complaint looks a
little bit wacky, that doesn’t mean that your underlying legal theory
is wrong.”
But so far, the court isn’t too impressed with Clayton’s theorizing. U.S. District Court Judge Richard J. Leon has already rejected the club owner’s request for a temporary restraining order to lift the go-go restriction, stating that “there is no substantial likelihood the plaintiffs will succeed on the merits.” Clayton’s appeal of that ruling was also dismissed last week, after he failed to pay the $250 docketing fee. —Chris Shott
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Art accompanying story in the printed newspaper is not available in this archive: Photo by Charles Steck.