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The city has kicked John Harrod out of the Eastern Market gallery he’s run for almost 30 years. Supposedly.
Looking out from behind his heavy wooden desk in D.C. Superior Court on the afternoon of July 14, Judge Ronald Wertheim faces a small group waiting nervously to begin proceedings on the request for a temporary restraining order in the case of Market 5 Gallery vs. District of Columbia. Through the large window at Wertheim’s back, the red-and-white flag of the nearby Canadian embassy waves under a sky threatening rain.
Market 5 Gallery, an arts nonprofit, for decades enjoyed a harmonious life with the District. John Harrod, Market 5’s executive director, moved into Eastern Market’s 4,500-square-foot North Hall 27 years ago and started programming community arts activities—concerts, art shows, dance recitals—in exchange for free rent. Beginning in 1979, Harrod also managed the weekend crafts vendors who hawk their wares on the market’s plaza—in fact, it was he who came up with the idea of having vendors at all. Harrod collected rents from the vendors based on their use of the space—if they showed up, they paid rent. He claims that he returned those funds to Market 5’s coffers to cover utilities, maintenance, and salaries for himself and his handful of assistants—he calls them independent contractors—over the years.
Depending on whom you talk to, Harrod’s takeover of the once-barren North Hall marks him as either selfless or self-serving.
Today, Market 5 is seeking a restraining order against the District government. The gallery’s lawyer, Donald Temple, alleges that since the weekend of June 3, the city has, illegally, interfered with Market 5’s commercial relationship with the vendors by trespassing on Market 5 property and collecting the vendors’ daily rental money.
Never mind that the District told Market 5 to get out of the city-owned Eastern Market on May 31 because Harrod couldn’t reach an agreement with the District over a management reorganization mandated by a law the D.C. Council passed last year. And that Market 5 owes the District about $8,000 in back rent. Harrod has been stiffing the city since 1998.
Representing the District is Mark Back of the city’s Office of Corporation Counsel. By his side sits Andrew Reece, interim deputy director and chief of staff of the city’s Office of Property Management (OPM), which has overseen the city’s relationship with Market 5 since the D.C. Commission on the Arts and Humanities relinquished its oversight several years ago. Market 5 started out almost three decades ago with a rent-free deal, but that gig ended in the mid-’90s after community pressure led to Market 5’s having to pay a modest rent of $300 a month for 10 months of the year. Since that rent was levied, the North Hall and Market 5 activities have fallen under OPM’s purview—Market 5 sits on a valuable piece of District property.
Of late, landlord-tenant relations have gotten dicey. Under the law the D.C. Council passed last year, all Eastern Market vendors—from farmers to silversmiths to flower peddlers—are to be centralized under one market manager. Centralization has yet to occur; right now, the vendors answer to several different managers. The law stipulated that the new market manager position be open to anyone—except anyone with pre-existing financial ties to the property. Which effectively put Harrod and Market 5 out on the street.
But the District couldn’t just kick Market 5 out. Until the OPM could hire a central market manager, the District was required by the law to offer new terms to Harrod’s nonprofit. So the District started up negotiations on an interim measure called a “licensing agreement,” which would have taken a significantly larger chunk of rent than Harrod had been charged before.
That is, of course, had Harrod been paying his rent. He claims he stopped paying the rent to protest the pending legislation that would allow him almost no say in market management.
As for the interim terms, Harrod and the District could not agree. At wit’s end, OPM sent Market 5 an eviction notice, effective May 31, 2000.
Harrod didn’t budge.
So starting the weekend of June 3, city officials started showing up at the market to collect rents directly from vendors, effectively walking in on what Market 5 presumes is its business—which is the object of the restraining order, filed by the gallery against its landlord.
Judge Wertheim, leaning over a stack of documents, focuses today’s hearing on the terms of the Eastern Market vending legislation (passed in 1999 but dated 1997). The law stated that all management entities still on the premises could renew on terms similar—but not identical—to those they had previously observed.
The Office of Corporation Counsel contends that the city offered Harrod certain terms during the licensing-agreement negotiations that he didn’t respond to. Harrod says he was not so much offered an agreement as dropped into a competition over the temporary management of the space. He also says he knew he couldn’t compete with a more cost-efficient bid made by a third party. His business had never been oriented to the bottom line. And that’s why many of the vendors, themselves artists with erratic incomes, loved working for Harrod.
The judge reads the statute.
The sticky wicket is a clause in Section 8 of the Eastern Market Real Property Asset Management and Outdoor Vending Act of 1997. It says that existing businesses should be grandfathered in with “rents….[that] shall reflect fair market rents and practices.” Clear enough. Then there is a special bit that applies only to the North Hall: “[B]ut rents and fees for the operator of the North Hall shall take into account that certain activities will be charged only nominal fees.” North Hall equals Market 5 equals Harrod, argues Temple.
Back insists that the District was seeking fair market value for the space, citing “competition of a capitalist society.” Back says, “There is no better way to find fair market value than to get bidders.” He adds: “We’re talking about money.”
“We’re talking about a lot more than money,” Judge Wertheim counters.
Market 5 is “being irreparably harmed based on [its] own actions,” Back says.
Still, the law’s wording seems ambiguous. What are “certain activities” commanding “only nominal fees”? The judge examines the new licensing-agreement terms proffered by the city earlier this year. “[There is] no effort to identify nominal fee activities,” he says. Later, the judge says he doesn’t think the District followed the law in its dealings with Market 5.
On the grounds that District officials did not comply with the statute, Judge Wertheim grants a restraining order, effective immediately and good for 10 days. As Wertheim takes pen to paper, Back asks that Market 5 post a $15,000 bond to cover its arrears. The judge declines the request. Harrod and Temple make a swift exit; District officials linger, gathering their documents.
Outside, cheers go up among Harrod supporters when they hear the news. Among them stands community agitator and historic preservationist Mary Farrell. “The angels won today,” she says. “Let’s hope it lasts.”
Compared with the previous week, the vending plaza outside Eastern Market’s North Hall on the Saturday afternoon following the hearing is sparsely populated. Silversmiths and photographers under white tarps and green umbrellas have room to stretch out. Forecasters called for heavy rain—which may account for the many absences in the usual clot of vendors. So far, though, not a drop has fallen.
Inside the North Hall, incense wafts around multicolored carpets unfurled along the rear stage, toddlers’ jumpsuits hanging from racks, and silver jewelry lying on velvet-draped tabletops. Over in a corner, behind two flimsy temporary walls, sits the Market 5 command center: a computer, television, and a few rogue chairs. There, Harrod’s assistant, Camille Mosley-Pasley, compiles money raised from the legal-defense fundraiser held the night before, just after the restraining order was issued.
Asked about the small vendor population today, Mosley-Pasley speculates: “Lots of vendors didn’t show up because of [the threat of] rain…and for other reasons.” She raises an eyebrow.
Harrod doesn’t think the restraining order has affected the vendors. He figures the vendors’ first obligation is to their livelihoods, not Market 5’s politics.
He believes his trouble originates in neighborhood people who aren’t so fond of him. “From the beginning, some did not like what we do here,” Harrod claims. Who’s that? He stops to consider. “A group of concerned citizens,” he says elliptically.
One of those folks is Ellen Opper-Weiner, head of the Eastern Market Community Action Committee (EMCAC), who made a brief appearance at Friday’s hearing wearing a brown suit and a troubled expression.
“I was concerned for about five years as to where the [Market 5] money went,” Opper-Weiner explains. She was also concerned about whether the gallery was fulfilling its mission as a community art space. Opper-Weiner argues that “Market 5 was running an operation that was not legal” because the “city didn’t get any money out of [the outdoor vending]” and, she claims, the gallery was not accountable for the monies it collected.
Harrod rents from the District, Opper-Weiner contends, and the money he collects from vendors should go to the city. “It’s a city property,” she says. “Money is not being passed on to the city.” She insists that Harrod “wants to [occupy the North Hall] and not be responsible.”
Since city officials came in to collect vendor rent directly in early June, Opper-Weiner says, they’ve netted more than enough cash to cover the rent. There is “no reason that Market 5 hadn’t been paying its rent,” she says.
Of Harrod’s nonpayment of rent and refusal to negotiate and vacate, Opper-Weiner says: “He’s looking for martyrdom.”
“I do owe lots of money,” Harrod concedes. He stopped paying rent back in 1998 because of the pending market reorganization. “We thought it was unfair to us,” he says. Folding, unfolding, and refolding a yellow Post-it note, he now admits he should have paid rent and protested another way. Where did the money go? Into escrow, as is customary during rent strikes?
The money went into Market 5’s operating expenses, Harrod says. No escrow.
“But back rent was never an issue in the [licensing agreement] negotiations,” he says. Instead, he contends, the District had a vision for the future of Eastern Market—and it didn’t include him. He thinks the city is making back rent the issue to distract from the way it has handled the market’s restructuring.
Harrod claims his negotiations with the city ultimately broke down over a privacy issue: The city wanted to share details about the licensing agreement negotiation, which Harrod considered private, with EMCAC. “I didn’t think that was right,” he says.
“John ousted himself,” says artist and vendor Michael Berman. Of Harrod and his associate and paid independent contracting manager of the Sunday market, Tom Rall, Berman says, “[They] both dropped the ball when they couldn’t finalize a licensing deal with the city” over how they would run their respective parts of the market.
When Market 5 received its eviction notice, Berman and the other vendors organized, creating yet another faction in the market turf wars. With a seven-member volunteer board, the vendors organized to represent themselves directly in discussions with the city, circumventing Harrod.
Sonda Tamarr Allen, a silversmith who has been vending at the market for nine years, remains sympathetic to Harrod. “I’m here because of John Harrod,” she says. She cites Harrod’s flexibility with rental payments and his understanding of the needs of artists. “I deeply appreciate that,” Allen says, “no matter what the problems are.” As for District officials, Allen claims they aren’t showing Harrod the proper respect. “They’re just talking about the money.”
But with the restraining order, the purpose of the vendors’ group is effectively moot—at least for the following 10 days. Standing by his prints on the day after the hearing, Berman says, “What’s wrong with the court order is that it doesn’t put the money in escrow…while they’re trying to determine [the facts].”
According to Reece of OPM, there’s a lot of money to talk about. It turns out that the District collected what averaged about $10,000 a month before the restraining order was issued. That money went straight to the new “Enterprise Fund”—the Eastern Market kitty that was created by the new vending law. Now, some folks are wondering what Harrod did with all the cash Market 5 was receiving before the District stepped in to collect rent.
“Since June 1,” Reece says. “We’ve been collecting [over] $10,000. Let’s say this is an average [figure]. If [Harrod is] collecting $120,000 a year and can’t pay the District $300 a month in rent, he’s basically been pocketing the money.” Reece adds, “I’m sympathetic to John, but it’s still a city-owned building.”
Harrod now says he will be sending the city a check for half the back rent at the end of this week.
Farrell, who lives nearby, maintains that the District is under the wrong impression of Market 5 income. She calls it an “erratic stream of income…utterly dependent on the weather.”
“The whole thing about rent is completely bogus,” Farrell continues. Market 5 didn’t originally pay rent because it was a nonprofit arts
organization serving the city, and “that was the deal.” Tenants who pay rent in the South Hall are for-profit enterprises, Farrell says. “The North Hall shouldn’t pay rent,” she maintains, because “it is a nonprofit [that] is struggling to survive.
“It has survived because Mr. Harrod has given his life to this operation,” Farrell claims. As for suspicions of where he put the money, she says, he “lives like the village priest…[and] has nothing in the way of worldly goods.”
Farrell would like to see Market 5 return to its spot under the arts commission’s aegis. “If [the city] sees the market as a piece of valuable real estate…[the city] wants the best and highest use,” she says. “If they see it as an important cultural resource, as living history,” Farrell continues, “then none of that applies.” CP