Does the axiom hold true for ABC licensed establishments?
The cover-up is always worse than the crime. Isn’t it? You always hear that, but is it accurate in D.C. liquor license matters? The limited number of cases that address investigation interference suggest that it isn’t.
For example, in a recent case, XO Lounge was found to have destroyed (or allowed to be) video evidence requested by ABRA.
The video purportedly showed security personnel roughing up a patron at the bar. Both MPD and ABRA requested the video from the establishment’s owner.
However, the owner did not produce the relevant video. He only provided camera views that did not show the alleged scuffle. The owner testified that while he was out of town tending to a family emergency, his video system overwrote the relevant camera angle. The owner also provided a litany of reasons (read: excuses) as to why he did not produce the video before it was recorded over.
The Board did not buy the owner’s story and found that his actions constituted interference with an investigation. The Board even described the owner’s actions as “repugnant” in its order. In re: DC Live, LLC t/a XO, (DCABCB Order No. 2017-522 Case No. 16-251-0277 October 24, 2017)
So, what’s the penalty for “repugnant” investigation interference? A $2000 fine and no suspension.
What if the owner turned over the video showing assault on a patron?
What might have happened if the owner dutifully turned over the video which showed, a security guard pummeling a patron into submission?
Of course, this involves speculation, but, we can look at other cases of employee violence against customers to get a sense. In a recent case, the Board found that security personnel used excessive force in “escorting” an unruly patron off the premises using a back staircase, which resulted in the ejectee suffering a broken leg. The penalty, in that case, a $2000 fine and 5-day suspension, with all five days stayed. In re:Kabin Group, LLC t/a Kabin (DCABCB case no. 17-251-134 order no. 2018-094 March 14, 2018)
In another case, a security employee dragged a patron down a flight of stairs. The Board found that the use of physical force violated the establishment’s security plan. The penalty was a $4,000.00 fine and 7-day suspension. In re: 1215 CT, LLC t/a Rosebar (DCABCB Case no 16-251-125 order no 2017-201 April 26, 2017) However, Rosebar, was the third offense, mandating an increased penalty.
Could the Board have imposed a stiffer penalty for the destruction of evidence?
Yes, they could have. The law provides that where an owner has interfered with an investigation the Board may fine the licensee and suspend or revoke the license. DC Code 25-823(a). The fine for a first-time investigation interference is between $1,000 and $2000. 23 DCMR 800.
In XO the Board imposed the maximum monetary penalty available but opted not to suspend or revoke the license. If we look to Kabin as precedent, a first offense of employee violence merits a maximum fine plus a suspension (albeit a ‘stayed’ suspension), and investigation interference does not.
Consequently, the present state of the law is that even a “repugnant” cover-up is not as severe as the underlying offense.
I am not suggesting that establishments rush to delete hard-drives. To the contrary, video evidence frequently exonerates establishments from allegations of wrongdoing. My point is that there are often inconsistencies in the Board’s interpretation of the law. (As is the case with any Court). With the assistance of professional, knowledgeable representation inconsistencies can be used to mitigate or defeat fines and penalties.
If you find yourself on the receiving end of a violation or citation and want a free evaluation of the benefits of representation in your case, contact me or use the scheduling tool on my website to make an appointment for a time that is convenient for you.