ANC 5B Loses FOIA Court Case – Releases Brookland’s Finest Protest Documentation

At the May 2013 ANC 5B meeting  ANC 5B-04 Commissioner Steptoe introduced a resolution resulting in the Commission taking a 4 – 1 vote to protest the Brookland’s Finest restaurant’s liquor license application. Although the Resolution was procedurally sound (Commissioners are allowed to introduce resolutions under “new business”) many were taken aback by the fact that the vote was not announced on the published meeting agenda and that the resolution was supported by 15 exhibits that were not shared with the public. At the time, Commissioner Steptoe  claimed that the she visited “every house in the perimeter of the establishment” and found that “a majority of the property owners are against it”. (See the first video below around 2:10 – 2:30.) Many found this claim difficult to believe given the overwhelming neighborhood support for the restaurant. We did an analysis of documentation acquired from DC’s Alcoholic Beverage Regulation Administration (ABRA) in July and found that actually 31 immediate neighbors were against and 149 were in favor of the establishment. We also found that many signatures in protest of the restaurant’s liquor license were not actually from Brookland neighbors, but from members of two churches near the proposed restaurant.

When pressed at the July 24th ANC 5B meeting on the finding that many opposing signatures actually came from residents who are members of nearby churches, used church addresses as their residence on the petitions, and are not residents of Brookland, Commissioner Steptoe retorted that those raising these points were “misinformed” and “mistaken” (see the video below around 9:15 – 16:10.). However,  now thanks to the FOIA case, we can see that actually this is the case via Exhibit 9 (pages 10, 14, 15) which can be found here.

Back tracking a bit, following the May ANC 5B  vote to protest the restaurant’s liquor license, the Brookland Bridge Blog and a Brookland resident, Conor Crimmins, submitted Freedom of Information Act (FOIA) requests for the Exhibits associated with the protest resolution. ANC 5B refused to release the Exhibits associated with this vote, which led to Mr. Crimmins taking the ANC to court to gain access to them (the Brookland Bridge Blog declined to take further action). The end result is that the ANC lost the court case and had to hand over these documents. Mr. Crimmins shared them with us and we are making the documents available to you here. (For a list of documents, see below.) The process to obtain these documents was quite lengthy and involved many steps. Mr. Crimmins shared a timeline of events including how and when he requested and received each of the documents:

  • May 24: I emailed Cmr. Higgins (my SMD Cmr. ) and requested all Exhibits used by ANC5B in support of their Resolution to Protest Brookland’s Finest ABRA Application, voted on at the May 22nd Meeting. Cmr. Higgins responds that I must contact Cmr. Steptoe to receive these documents.

  • May 24: I emailed Cmr. Steptoe a forward of my request to Cmr. Higgins and then made an individual request of her for the documents, as instructed by Cmr. Higgins.

  • June 3: Having received no communication from Cmr. Steptoe, I resent my request to Cmr. Steptoe (and other ANC5B Commissioners) and made another request for the 15 Exhibits.

  • June 3: Cmr. Steptoe responds to my request by stating that ANC 5B will not provide any of the Exhibits.

  • June 3: I had two conversations with Gottlieb Simon, Director or ANCs, about my request.  While sympathetic, he states that it ‘sounds’ like these are documents that should most likely be made available, but he cannot say because he has not seen them.  He also offers that he has no authority to make an ANC provide the documents even if he did think they should be public.  He then informed me that I had three options, I could try and see if the documents had been provided to ABRA, and if so, try and make a request for them through ABRA.  I could try and get the ANC, at their next meeting, to take make a motion and take a vote to force the release of the documents.  Or, I could file a FOIA law suit to try and obtain them.

  • June 3: I began discussion with Don Padou, about FOIA lawsuit.

  • June 5: Made a second request of Cmr. Higgins for the Exhibits

  • June 5: Cmr. Higgins replied that she did not have copies of the Exhibits

  • June 19: Filed FOIA lawsuit and served ANC5B

  • July 1: I made a request of Ms. Fashbaugh at ABRA for documents.  No reply.

  • July 1: Don made request on my behalf to EOM/FOIA asking for support in FOIA request and intervention

  • July 5: Filed Discovery Request

  • July 6: Steptoe sent email notice to community of Complaint

  • July 12: DC’s Office of the Attorney General (OAG) Drafted Memo to ANC5B in response to a Question ANC5B asked it regarding if they had to give up documents

  • July 12: Based on “new OAG interpretations” Cmr. Steptoe emailed me copies of Exhibits 10 and 11

  • July 16: Having learned of OAG memo, we make FOIA request for copy of OAG Memo to ANC5B

  • July 29: Receive copy of OAG memo

  • July 31: File Preliminary Injunction

  • Aug 7: OAG releases Exhibits 1, 2, 9, 10, 11, 13, 14, 15 (those that I had expressly named by title in my original FOIA request)

  • Aug 13: Court hearing.  We argue that we are still due Exhibits 3-8 and 12.  Court rules in our favor.  We receive Exhibits 3-8 and 12 at 8pm on Aug 13.

  • Aug 14: 8pm – 1:35am (Aug 15) ABRA Hearing on Brookland’s Finest Application

For me, the most frustrating aspect of this situation is the basic issue of transparency. Why is a court case necessary for the public to obtain access to the documentation that was a foundation for a vote before the ANC? Further, on July 12th, the Legal Counsel Division of the Office of the Attorney General provided ANC 5B with a legal opinion that not only must they provide a copy of the Resolution and Exhibits 10 and 11 but that they should provide copies of the other Exhibits.  While ANC 5B did provide copies of Exhibits 10 and 11, they also continued to withhold the Resolution and the other Exhibits against the advice in the OAG’s opinion. As a result, Don Padou, Mr. Crimmins attorney, filed a Motion for a Preliminary Injunction at the end of July and it was only after the hearing was scheduled that the District agreed to release the Resolution and 7 of the Exhibits. I reached out to Mr. Padou, who wrote the following:

At the PI [Preliminary Injunction] hearing, the Judge decided in Conor’s favor and ordered the documents released by 5 PM that day.  The District did not release the documents until after 8 PM and after I sent several emails and left a phone message for the District’s lawyer.

The delay in producing the documents was not the first time that the District failed to follow the Judge’s orders.  Prior to the PI hearing, the Judge ordered the District to provide him with a copy of the Resolution and all 15 exhibits.  The District provided the Resolution and half of the exhibits, but refused to provide all of the exhibits until the Judge issued a second order.
We asked ANC Commissioner Steptoe for a response to the results of the court case and she replied with the following statement:

FOIA requests tend to be pretextual strategies by persons/entities seeking a leg up and/or expose.  So, when I rec’d the FOIA request immediately after the ANC’s May vote by persons in dogged support of the bar (the bar is in my SMD), according to our bylaws, my read was to deny the FOIA request based on deliberative processes.  However, since I do not write DC law, I also immediately contacted OAG in May seeking their legal interpretation under deliberative processes.  I also referred requesters to OAG for legal interpretation, to no avail.  Instead, ANC 5B rec’d no legal interpretation from OAG until after one of the requesters filed a lawsuit in July/August.  While I view these machinations as unnecessary waste – pretextual or otherwise – such do not rest on ANC 5B.

All of this seems like a lot of work and bother for documents that could have been turned over without the need for a court case. I agree with Commissioner Steptoe – this whole process resulted in unnecessary waste, so why not just turn over documents as  a matter of government transparency and avoid the lengthy (and I assume costly) process?  Not having any experience with FOIA cases, I was surprised to find that DC is required to provide an attorney to defend the ANC’s stance. This made me wonder how much of our tax payer dollars go towards a case like this. I asked Mr. Padou to estimate the cost this particular case would incur to DC taxpayers. He had this to say:

It is hard to quantify how much D.C. taxpayers pay when D.C. agencies refuse to comply with FOIA.  I can tell you that D.C. judges are fed up and constantly scold D.C. agencies for their failure to comply.  The fees to a plaintiff’s lawyer can be very low (a couple hundred dollars) if the District agency turns over documents shortly after a FOIA complaint is filed.  If the agency decides to fight in court, however, the fees escalate.  I can’t give you any kind of estimate for how this case will turn out because I have no idea how long ANC 5B will prolong litigation.  I can tell you that if ANC 5B had complied with the OAG’s July 12th letter, the cost to D.C. taxpayers would have been very, very low.

Here is a list of the exhibits, linked above:

Exhibit 1: ANC 5B Resolution in Protest of Brookland’s Finest
Exhibit 2: ABRA Application of Brookland’s Finest
Exhibit 3: ANC 5B 2013 Boundaries Map
Exhibit 4: ANC5B04/Steptoe Notice of April 27th Meeting regarding Brookland’s Finest
Exhibit 5: ANC5B04/Steptoe Agenda for April 27th Meeting regarding Brookland’s Finest
Exhibit 6: ANC5B04/Steptoe Sign-In sheet for April 27th Meeting regarding Brookland’s Finest
Exhibit 7: ANC5B04/Steptoe Notice of April 27th Meeting written on to indicate early adjournment of the meeting of April 27th and posted to door of Demountable Trailer
Exhibit 8: Cmr. Steptoe email to community on April 28th explaining early adjournment of the meeting of April 27th
Exhibit 9: ANC5B04/Steptoe Survey of Nearby Residents “For” or “Against” Brookland’s Finest conducted on May 3, 4, 5, and 10
Exhibit 10: ANC5B04/Steptoe letter to Nearby Residents left when no one was home during survey
Exhibit 11: ABRA Notice to ANC5B of Brookland’s Finest Application
Exhibit 12: Cmr. Steptoe email to community on May 9th noticing of official ABRA Placard Notice of Brookland’s Finest
Exhibit 13: ANC5B04/Steptoe letter to Nearby Residents informing them of discrepancies in ABRA Application for Brookland’s Finest and Previously published and provided information from Brookland’s Finest
Exhibit 14: Copy of First Official Protest by Protestants of Brookland’s Finest ABRA Application
Exhibit 15: Copy of Second Official Protest by Protestants of Brookland’s Finest ABRA Application

31 thoughts on “ANC 5B Loses FOIA Court Case – Releases Brookland’s Finest Protest Documentation”

  1. Thanks for all of this- ridiculous that one person can impact so many in the community in such a negative way! The far reaches and impacts of the behavior is damaging well beyond Brookland as I have been told new restaurants were watching this process and it was delaying (or even changing) their attempts to open in Edgewood.

  2. New businesses (and ABRA licences) are welcome in Brookland, and Brookland residents will fight for these neighborhood amenities.

    This victory over ANC Commissioner Steptoe serves as a message that Brookland residents will go to great lengths to foster small businesses and ensure that Brookland grows and prospers.

    At the next ANC5B election, we must make sure our voices are heard again by electing an ANC5B04 Commissioner that’s better than Steptoe. She inappropriately used her position to misinform a small minority, and used the small minority as a *pretext* to serve her own interests, all while hiding the truth from the residents she promised to serve.

    What other misdeeds is Cmr. Steptoe capable of?
    What other misdeeds has she already committed?

    1. Hi James,

      The last time I communicated with anyone on the tape recording FOIA request was August 22nd with Don Padou, who is representing Conor Crimmins on this case as well. He wrote: “The main issue remaining is the release of the recording of the April 27th SMD meeting. The District has filed a Motion for Summary Judgment arguing that the recording is Steptoe’s personal property…We will file our opposition soon.” Will let you know when there is some resultion there.

      Thanks for reading,
      Shani

      1. This makes sense–the merits of the case are still yet to be decided. All of the documentation released was part of the pre-trial process of discovery, so the ANC hasn’t actually “lost” the FOIA case. The ANC’s motion for summary judgment is attempting to end it before a trial, and I’m sure the plaintiff will attempt to do the same. In any case, no one’s won or lost the case yet, even though the court ordering discovery of these documents is certainly a “win” for the neighborhood.

        1. Actually, the ANC has “lost” another battle in their war against the resident’s right to an open process. Their goal was to keep the information regarding their shady dealings away from public scrutiny. Regardless of the outcome of this lawsuit, the documents have seen the light of day. That’s all people wanted in the first place.

    1. Don’t be too quick to write Cmr Steptoe off. She won the last election by a considerable margin, and even though she has thoroughly riled up and alienated the blog-posting, email-reading segment of the population, she still enjoys substantial support among the residents of the SMD who do not read emails or blogs. She is a formidable retail-level politician and will mount a serious get-out-the-vote effort. And there will be NO change unless there is a credible candidate running against her. Bear in mind, too, that even if she is ousted in the next election, she won’t be going away. She will merely revert to her role as community activist – a role she is probably better suited for, as she would be freed of any obligation (even if at present it is observed only in the breach) to represent the views of constituents with whom she disagrees.

  3. Thank you, Shani, for this comprehensive report.

    I, too, am saddened and frustrated that the simple release of documents became such an arduous and likely expensive process. However, I view this as a significant victory for Brookland and for the principle of transparent government.

    Thank you to you and to all of our neighbors involved in this case for your hard work, and for making clear that we will not simply look the other way when our elected officials refuse to comply with the very laws that they are expected to uphold.

  4. Is no one else infuriated by the quote from Carolyn Steptoe? To boil it down, what she says is that she denied access to the documents (FOIA request) because it came from someone in dogged support of Brookland’s Finest.

    This is terrible local government. Not to mention against the law.

    Shame on you, Carolyn Steptoe. You just outright admitted that you willfully withheld public documents from your constituents and neighbors — documents that the Court demanded be released because they are so clearly public documents — because the person that requested them disagreed with your position on the issue.

    This is such an outright abuse of the public trust. You owe your community better than this. This is shameful.

    And, what did the documents finally show once the Court released them? That many of the claims made by ANC5B and many of the comments publicly made by Carolyn Steptoe were outright lies and deception.

    The only machination occurring here is the actions of ANC5B and its commissioners.

  5. Thank you for this in depth reporting. As a resident of a close by SMD I cannot wait to eat my first meal and enjoy a glass of wine or beer at Brookland’s Finest! I was at the ABRA hearing and will continue to support small businesses in our neighborhood that will improve our community!

  6. The charm of Brookland today — and its future — is that it is a community, and the restaurants and bars that exist are one of the greatest examples of this characteristic. I, for one, was never in favor of any restriction for Brookland’s Finest. I found the brokered compromise, particularly regarding advertising, to be subjective and bureaucratic. But it is clear that from the very beginning Brookland’s Finest endorsed the the community spirit of the neighborhood. Such effort and accommodation should be rewarded, not punished.

    The current state of ANC regulation rewards pre-existing establishments to the detriment of new businesses, the present community, and the future of Brookland. I suspect there is more to this than the objection of those people who attend the nearby churches. It is rare that government enters with new restrictive regulations that do not have in mind, at some level, the favoritism of existing establishments over prospective competition.

  7. Jesus Christ, get this person Steptoe out of our local government. This is simply nuts and a reason I could never stand DC government in all the years I’ve lived here!

  8. Shanni,

    Thank you for recording these meetings. I was the “misinformed” person who challenged Cmr. Steptoe regarding her collusion with the churches. This is the second time your recordings have led to the exposure of contrary statements by Ms. Steptoe. I knew that she worked with the churches on her petition. You can see in the video where she denies this. At the ABRA hearing this was also confirmed by one of the Pastors as well.

  9. A responsible ANC would censure Carolyn Steptoe for her lies and opaque dealings. Unfortunately, it appears that the other commissioners, with the exception of Tiffany Bridge, were colluding with Steptoe to deceive the public. This shameful saga has shattered the credibility of ANC 5B.

  10. The question now is what do we do? Obviously we can air our grievances at the ballot box, but November 2014 is not exactly in the near future. Is it worth going to the press or news outlets? Ms. Steptoe already appears to be on the friendly side of Clinton Yates from the Post, but maybe there is another avenue. Exposing the ANC’s misdeeds may encourage them behave property.

  11. Ms. Hernandez – Thank you for printing my 5B04 statement in its entirety. Regrettably however, your pieces continue the unfortunate perpetuation of woefully skewed misrepresentation, misinformation and deliberate distortion esp. as relates to the FOIA aspect and the protestant signatories.

    Indeed, as noted during the ABRA protest hearing (and now published in the ABRA transcript) not only are 99.9% of the 149 supporter signatories NOT most directly nearby neighbors (within a 400 ft radius), the applicant’s proffered exhibited map itself reflects 149 as well beyond the 400 ft. nearby. radius. Instead, applicant’s map codes the nearby protestants (35 different households) as all within the 400 feet perimeter. The ABRA investigator’s exhibit map shows the 400 ft. perimeter as these unit blocks: 1000 Jackson; 3100 12th; 3200 12th; midway only – 1200 Jackson, 1000 Irving, 1200 Kearny, 3100 10th, 3200 9th. Contrary to your not-too-subtle inferences, these are the exact unit blocks I personally surveyed door-to-door, including your home. There are 35 different households within this perimeter who signed in protest of this bar; whereas less than 5 different households of the 149 signatures are nearby households. Your claims that the 149 signatures reflect supporters from “the majority of the community” are grossly false & patently untrue. Again, pls. refer to ABRA transcript, investigator’s map and even applicant’s own proffered color coded exhibit map.

    Lastly, your pieces continue to inaccurately put forth two sadly misinformed (if not maliciously hyperbolic) untruths: about: (1) the ABRA process, signatures and the protestant churches: please read the Roll Call and Protest Hearing records (you attended the former) to find and ultimately lay to rest your deliberate falsity and continued procedural misunderstandings and (2) actions of SMD 5B04: clearly you may write what you wish but, besides irrational histrionics (albeit entrenched hostility), none of what is written is true, accurate, honest, unbiased or devoid of an agenda.

    Very kind regards,

    Commissioner Carolyn C. Steptoe
    (pardon typos, etc.)

    1. With all due respect, Commisioner Steptoe, your response contains farm more hyperbole and irrationality than the original blogpost. I wish you would just realize that you are wrong on this one and that the majority of the Brookland community is trying to welcome Brookland’s Finest with open arms.

    2. Commissioner Steptoe, Like you, I live in Brookland. Like you, I care about our neighborhood. What steps do you suggest to keep our neighborhood the warm, wonderful place that it is? To bring people together? To move beyond “entrenched hostility”?

      1. Commissioner Steptoe and neighbors,

        The 400 foot perimeter sited has nothing to with individual residents in support or protesting an alcohol license application, so that argument rests on a falsehood. It has been made repeatedly clear by ABRA that the 400 perimeter applies only to institutions (schools, churches and the like). But, don’t take my word for it, review the transcript of the Brookland’s Finest ABRA hearing from August 14th, where this clarification is spelled out yet again.

        I have made pertinent protest and hearing documents, like the transcript cited above, available for the public at this link. I even included the settlement agreement showing the supporters live just as near as the protestants.
        https://drive.google.com/folderview?id=0B6zkd9bFHVk8OXRwV0VHa1ItMFE&usp=sharing

        Videos of the first ABRA hearing and ANC Meetings where the alcohol application are discussed is here:
        http://www.youtube.com/channel/UCkLKRSEXFGehZrpKUtZ5uGA

        I invite the public to draw their own conclusions. Still, even if you think I am wrong, or want a restaurant or not – think about this – why would an elected official persist in concealing mundane public documents like ANC Boundary Maps and Door to Door Polls – and go so far as to waste taxpayer dollars on a FOIA court case to keep them concealed? That speaks volumes.

        Best,
        Shani

    3. Ms. Steptoe,

      Let’s talk about true, accurate, and honest. During the ANC meeting of 7/24/2013, shown in the video above, I specifically said you had people sign your petition who did not live in Washington, DC (10:24). You said that I was “misinformed” (10:35). We went back and forth for about 1 minute and 30 seconds. You asked me if I saw you go to one of the churches. I did not. The simple fact of the matter is you did not have to go to the churches because someone acting on your behalf physically went to the churches and obtained the signatures. You were also accused of turning in your petition to ABRA with signatures of non-DC residents. You clearly said no you did not. When pressed on this point again, you clearly said, “You don’t know what I did!” (11:48-12:00) After the meeting I specifically asked you I you were working in partnership with the churches again and you said you were not.

      Ms. Steptoe, I have read through all of the exhibits from the court case and I would like to tell you and anyone reading this what I discovered:
      1. An examination of ANC 5B Exhibit 9, page 15 reveals that you did, in fact, use people who were not from Washington, DC as part of your rationale to have ANC 5B protest the liquor licence. You also did, in fact have 15 people sign your petition and use Grace United Baptist Church address, 1219 Jackson St NE, as their address. Additionally, out of the 28 signatures on the exhibit 15 people used the church as an address and at least an additional 10 were from Maryland. 25 of 28 signatures were invalid. Finally, I would like to point out that the petition was named”COMMISSIONER STEPTOE’S DIRECT COMMUNITY OUTREACH”. By the way, it also had your picture on it. It is safe to assume that you gave the petition to someone for the purpose of collecting signatures at the church. I can safely say at this point that my statement to you was not made from a place of misinformation.
      2. In the transcript of the ABRA hearing, please note that on page 312, Pastor Davis stated that the church was altered about Brookland’s Finest. We he said that he look directly at your table. It is my belief that he was looking directly at you. I base this belief on the fact that he stated they collected signatures for a petition and gave it to the ANC. At that point he again looked at your table. I can only assume that since you were the only ANC person at your table, he was looking at you. So, who are we to believe? A Pastor who was under oath at the time or you? My conclusion is that your statements at the ANC meeting of 7/24/2013 were “grossly false and patently untrue”

      I think it is very low for you to take a swipe at Tiffany Bridge. It is apparent that she no longer wants to work with people who continue to show a loose relationship with the truth. The ANC has already been sued once. If it happens again, because of questionable practices, she does not want to be a part of it. Next time it may not just be for records.

  12. Count me among the Brookland residents grateful for the considered and considerable volunteer efforts of the individuals supporting the Brookland’s Finest development. This work, and that of Joe Barrios represent the real spirit of “small d democracy” and community activism.

    Thank you!

  13. Corrected perimeter:

    The ABRA investigator’s exhibit map shows the 400 ft. perimeter as these unit blocks: 1000 Jackson; 3100 12th; 3200 12th; midway only – 1200 Jackson, 1000 Irving, 1000 Kearny (not 1200), 3100 10th, 3200 10th (not 9th).

    1. Ms. Steptoe,

      As many others said, the 400 foot perimeter you speak of has no bearing on this matter. You are applying a 400 foot barrier to residents, when ABRA and the DC Code specifically and intentionally do not apply a 400 foot radius to residential areas.

      Stop your machinations. At best, this is irresponsible, especially from a Commissioner, who should know better. At worst, this is intentional misinformation meant to do harm to the applying establishment.

      TO MAKE THIS ABUNDANTLY CLEAR FOR YOU:
      TITLE I. TITLE 25, D.C. CODE ENACTMENT.

      Sec. 101. Title 25 of the District of Columbia Code is amended and enacted into law to read as follows (quotation marks omitted):

      TITLE 25. ALCOHOLIC BEVERAGES.
      CHAPTER 3. REQUIREMENTS TO QUALIFY FOR LICENSE.
      Subchapter II. Qualification of Establishment.
      § 25-314. Additional considerations for new license application or transfer of a license to a new location.

      (b)(1) No license shall be issued for any establishment within 400 feet of a public, private, or parochial primary, elementary, or high school; college or university; or recreation area operated by the D.C. Department of Recreation.

      (2) The 400-foot restriction shall not apply to hotel licenses, club licenses, or temporary licenses.

      (3) The 400-foot restriction shall not apply if there exists within 400 feet a currently-functioning establishment holding a license of the same class at the time that the new application is submitted.

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