The US District Court has dismissed a suit filed Sept. 25, 2023 by the owners of the Big Board restaurant (421 H St. NE) against a group of current and former Advisory Neighborhood Commissioners (ANCs).
In the opinion issued Sept. 30, the court said the Big Board “failed to plausibly allege a
necessary element of a First Amendment retaliation claim,” namely, that the ANC protested an application for license renewal filed by the Big Board in retaliation for First Amendment protected speech made by restaurant owner Eric Flannery.
The opinion, signed by Justice Amy Berman Jackson, noted that the court “has not determined that it would find public officials to be immune to claims that they knowingly initiated an effort to have a state-issued license revoked on frivolous grounds.” But, the opinion continued, there was no need to consider the matter after i it does not need to reach that question because the case was dismissed on First Amendment grounds.
Flannery v. Eckenwiler was filed in US District Court. The suit names six commissioners who served on ANC 6C from 2022-23. At the time, lawyers for The Big Board call the suit against ANC 6C “an important constitutional rights case.”
The lawsuit cites the First Amendment, claiming that the commission protested the renewal of the restaurant’s liquor license ”to punish and harm Plaintiffs, without a valid basis, in retaliation for Plaintiffs’ expressed views.”
The ANC unanimously ed a protest of the Big Board’s liquor license renewal at a Nov. 9, 2022, meeting. It was withdrawn by the ANC on March 8, 2023.
Background
The Big Board made national news after it had its liquor license suspended and was forced to close by DC Health in late January 2022. At the time, the city had vaccine and mask mandates in place related to the COVID-19 pandemic. The restaurant had been fined twice and warned repeatedly after it violated Mayor’s orders requiring employees to be masked and for staff to check customer vaccination status.
The restaurant reopened in March after paying off $4,000 in fines with the proceeds of a crowdfunding campaign that raised tens of thousands of dollars.
That same month, The Big Board applied to renew their liquor license, which was granted by the District’s Alcoholic Beverage Regulation istration (ABRA, now the Alcohol and Cannabis Regulation istration, ABCA).
DC Code allows for multiple parties to protest liquor licenses. That includes ANCs, which were themselves designed in part to end the duplication of effort caused by multiple special interest groups.
Like many other commissions, ANC 6C has made a practice in recent years of seeking a Settlement Agreement (SA) with food and beverage businesses. An SA is a type of contract between the applicant and the ANC on behalf of the community that addresses neighborhood concerns such as trash, parking noise. Those familiar with general procedure say ANC 6C generally uses the same template as a starting point for SA negotiations with businesses.
ANC 6C voted unanimously to protest the renewal at the Nov. 9 meeting of the full commission. In a letter sent to ABRA, commissioners cited three reasons for the protest: the impact of The Big Board on property values, peace order and quiet, and on noise and litter provisions. By law, opinions of the ANC must be given great weight by District agencies.
However, court documents filed on behalf of The Big Board argue that the ANC protest was premised on false claims. The suit alleges that more was said on the topic at a meeting of the Alcohol Beverage Licensing (ABL) Committee on Nov. 7, 2022 —two days prior to the vote by the full commission.
According to the suit, “At the November 7, 2022, meeting, Mr. Eckenwiler stated that The Big Board’s license should be revoked because, “I mean just some of the things he’s said publicly, we should go ahead and protest the license”.”
The Big Board argued that, whatever the phrasing in the official protest document, the ANC 6C protest was actually taken in retaliation for The Big Board owner Eric J. Flannery’s opposition to the District’s pandemic-era mandates. That, they argued, violates Flannery’s First Amendment rights.
The Big Board wanted the ANC to pay attorney’s fees, “which are substantial”, as well as punitive damages, Tryon told the Hill Rag last year.
‘Disappointed’
ANC Commissioner Mark Eckenwiler (6C04), named as the lead defendent in the case, did not have a comment at this time. Eckenwiler has been an ANC Commissioner for the area since at least 2012.
Representatives for the Big Board said they were disappointed.
“We agree with the court that the government officials’ assertions regarding their protest of The Big Board’s liquor license were “flimsy and uned”,” said David Tryon of the Buckeye Institute, a conservative think tank out of Columbus, OH representing the Big Board in the case.
“However, we are disappointed that the court dismissed the case,” Tryon continued. We believe that the court should have recognized that Mr. Flannery’s speech was a substantial reason why the government officials retaliated against The Big Board and that the court should have allowed us to conduct discovery to prove that.”
Tryon said the Big Board was exploring legal options.
