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Dirty Goose had five cookies on its menu last week, but the Alcohol Beverage Regulation Administration investigator who visited the establishment didn’t have a sweet tooth. Following a Nov. 27 inspection, ABRA fined the gay bar on U Street NW $1,000 for violating one of the city’s most peculiar policies. Businesses holding alcohol licenses must “offer a food menu at all times containing at least three prepared food items” in order to seat customers during the phased reopening process in D.C.
Co-owner Justin Parker says employees have pitched in to bake everything from macadamia nut to chocolate chunk cookies in an oversized toaster oven since they reopened. One of the requirements is the food offerings can’t be pre-packaged. Fresh baked cookies are an odd match for the martinis the bar is known for, but the pandemic has been a series of make-it-work moments. “They are fantastic,” Parker says. Each table is only required to purchase one food item, but the cookies are so popular people are buying them by the dozen. “At this point we’ve done over 6,000,” he says.
Parker says ABRA began inspecting the bar he co-owns with his husband heavily in June, once D.C. entered Phase 2 of reopening. He takes no issue with the fact that they came six or seven times in that month alone because the bar was always deemed to be in compliance with all of the guidelines.
“When ABRA came initially, the first thing they asked about was the food,” Parker says. “We showed them our food set up. Every time they came in, they reconfirmed it was meeting the food requirements.”
Richard J. Bianco, an attorney who represents small businesses including bars and restaurants in legal compliance matters, is helping Dirty Goose fight the fine pro bono. “It’s a case I feel strongly about because they’re not making any money,” he says. “They’re open so their staff can have a place to work. They’ve gone above and beyond with cleaning and contact tracing. They’re good guys, not people trying to get away with something to put extra bucks in their pocket.”
The attorney has already requested a hearing with the Alcoholic Beverage Control Board. He shared the news on Twitter, asserting that “nobody can credibly argue that a Snickerdoodle = Fortune Cookie.”
“ABRA has to regulate businesses within their purview by interpreting rules and regulations, but consistency here is of paramount importance,” Bianco says. “It ensures businesses are treated fairly and equally and due process is protected.”
Visit after visit, the sweets weren’t a problem, until suddenly, they were. “The agency turned on a dime and didn’t really give businesses notice or an opportunity to conform to their practice before slapping them with a fine,” Bianco says. “The rule about the three prepared food items has been out there since Phase 1. The agency has liberally interpreted that since the beginning and that’s what establishments have relied on. I’ve seen blog posts and news articles about places that have been the most creative in complying with this standard. ‘This guy has a mustard sandwich,’ or whatever.”
What Parker and Bianco find even more befuddling is the specific strike against Dirty Goose. They were cited for violating rule 810.2, which states that the establishment was participating in “On-Premises Consumption with No Food Service/No Menu.”
Parker says there are QR codes on every table that take customers to an online menu that displays the rotating cookie varieties. He also says that when he spoke with the inspector, she zeroed in on variety, not whether or not there was food at all.
According to Parker, after the inspector informed Dirty Goose that the multiple varieties of cookies don’t count, she recommended serving popcorn and a brownie. “Saying a brownie is different from a cookie—that logic doesn’t make sense,” he says. “It’s a lot of lip service for news conferences so they can say only restaurants are open. But in actuality, the rules aren’t serving any safety purpose to prevent COVID spread.”
City Paper asked ABRA about the citation and whether they’re changing how they’re enforcing the rule about the three prepared food items. A representative only offered that they’ve received Bianco’s request for a hearing. “ABRA will schedule a hearing once it receives a show cause notice back from the Office of the Attorney General,” the agency rep says. “The licensee will be provided an opportunity to argue its case to the Board at the show cause hearing.”
As Dirty Goose works on rolling out more desserts to avoid further penalties, Parker is still stunned. “They did a whole COVID inspection and they couldn’t find anything that could put someone in danger,” Parker says. “That’s frustrating for us. Our priority has been the safety of the staff and employees.”
Dirty Goose’s fine is emblematic of the hospitality industry’s mounting frustration with regulations that feel more fickle than functional. ABRA regularly shares which bars and restaurants have been hit with warnings, citations, or suspensions for violating reopening guidelines.
In recent weeks, businesses got verbal or written warnings after inspectors found patrons not socially distant; patrons seated at a staffed bar; and more than six patrons seated at tables that weren’t sufficiently spaced apart. These violations are more likely to contribute to the transmission of COVID-19 than passing off three treats as a food menu, which comes with a $1,000 fine on the first offense.
Why is that the way the cookie crumbles? A Nov. 16 press conference could offer a clue. Just after City Paper questioned DC Health Director Dr. LaQuandra S. Nesbitt about why the city doesn’t collect more robust contract tracing data related to dining, Mayor Muriel Bowser grabbed the mic to address what she called a “pet peeve.”
(The purpose of the press conference was to examine data about activities that come with risk such as hosting small social gatherings, dining at restaurants, and traveling. Materials provided to the press mentioned both bars and restaurants.)
“We report restaurant and bar information, though we don’t have open bars in the District and we haven’t throughout the response to this emergency,” Bowser said. “So somebody who is reporting to the District may have been to a bar someplace else. So I just want to be clear about that.”
But isn’t the intent of the guidance requiring establishments to serve three prepared food items to allow what most people would consider bars to operate during the phased reopening process? Parker describes the strategy as leveling of the playing field.
When the city and the country conduct postmortems on the handling of the COVID-19 crisis, Bowser seems eager to have it on record that she never allowed bars to operate. Making that claim successfully is facilitated by the fact that there are no alcohol licenses that contain the word “bar.” ABRA classifies establishments holding liquor licenses as restaurants, taverns, nightclubs, and hotels. Pre-pandemic, some “taverns” served food and some didn’t.
Experts recommend greater transparency surrounding the rationale behind restrictions. An associate professor of epidemiology at Johns Hopkins Bloomberg School of Public Health, Dr. Justin Lessler, told City Paper late last month that when jurisdictions aren’t explicit about what they’re trying to accomplish, it can be aggravating.
“When we look at control in this country more broadly, I think that is arguably one of the failures that we’ve had,” Lessler says. “It’s not so much the specific things we have done. It’s not having as clear of a goal as we maybe we should … Inconsistency leads to a lot of the frustration with policy.”
There have been 795 new COVID-19 cases and eight deaths tied to the virus in the first three days of December. If the goal is to get aggressive and bring down case numbers until a vaccine becomes available, investing time and resources into squabbling over cookies, brownies, and popcorn isn’t going to do it. Tighter restrictions like ending indoor dining could. (On Dec. 14, restaurants must reduce their indoor seating capacity from 50 percent to 25 percent.)
But Jennifer Tolbert, the director of state health reform at the Kaiser Family Foundation and author of a report on state-by-state coronavirus restrictions, points out that it’s hard for local leaders to put severe restrictions in place because it further strangles the economy and tax-generating business sectors.
“What some of this is about is this effort to balance the need to impose restrictions to stem an outbreak or stem the spread of the virus to protect the public’s health while also recognizing that stricter stay-at-home orders that many jurisdictions issued back in March have an economic impact,” Tolbert told City Paper in November. “With the failure of Congress to act to provide more coronavirus relief, it’s making it harder for state and local officials to enact these stricter measures.”
“We have rising cases, rising death tolls, people who are understandably concerned,” Bianco says. “If they want to tighten the restrictions they’re allowed to. They just have to tell us. They can’t just slap an establishment with a $1,000 fine who is in good faith trying to comply.”