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This is the transcript from the actual Show Cause hearing on December 7th, 2011 that resulted in a guilty verdict against the MOOD Lounge for violation of their Voluntary Agreement related to noise
Citation preview
202-234-4433Neal R. Gross & Co., Inc.
Page 1
DISTRICT OF COLUMBIA+ + + + +ALCOHOLIC BEVERAGE CONTROL BOARD+ + + + +MEETING
þ-----------------------------»IN THE MATTER OF: : :Mimi & D, LLC :t/a Mood : 1318 9th Street, NW : Show CauseRetailer Class CT : Hearing License No. 86037 : Case No. 11-CMP-00175 :ANC 2F :Violation of Voluntary :Agreement (Noise) :þ-----------------------------¼
DECEMBER 07, 2011
The Alcoholic Beverage ControlBoard met in the Alcoholic Beverage ControlHearing Room, Reeves Building, 2000 14th
Street, N.W., Washington, D.C., NickAlberti, Interim Chairperson, presiding.PRESENTNICK ALBERTI, Interim Chairperson DONALD BROOKS, Member HERMAN JONES, Member
CALVIN NOPHLIN, Member
ALSO PRESENTLOUISE PHILLIPS, OAGJABRIEL SHAKOOR, ABRA
202-234-4433Neal R. Gross & Co., Inc.
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T-A-B-L-E O-F C-O-N-T-E-N-T-SOpening Statement for the Government. . . . . .6Opening Statement for the Licensee. . . . . . .7Closing Statement for the Government. . . . .204Closing Statement for the Licensee. . . . . .207WITNESSES:George Danilovics . . . . . . . . . . . . . . 21Rishi Hingoraney. . . . . . . . . . . . . . . 46Jabriel Shakoor . . . . . . . . . . . . . . .102Abeba Beyene. . . . . . . . . . . . . . . . .150EXHIBITSGovernmentA First investigative report. . . . . . . . .103A Attachment 1, email from Mr. Hingoraney to Mood Lounge . . . . . . . . . . . . . . . . 66A Attachment 3, page 1, email from Mr. Woodson to Mood Lounge. . . . . . . . . . . 77A Attachment 3, page 2, email from Owners of the NINE to Mood Lounge. . . . . . . . . 22B Second investigative report . . . . . . . .103B Attachment 1, noise complaint against Mood Lounge filed online on ABRA's Web site. . . 24C Documented interactions between Mr.
Hingoraney and Mood Lounge. . . . . . . . . 79D Photo, buildings fronts on 9th Street, Northwest . . . . . . . . . . . . . . . . . 28E Photo, Naylor Court looking eastbound . . . 29F Photo, back of Mood Lounge. . . . . . . . . 31G Photo, the NINE condominium . . . . . . . . 32H Photo, view from inside Mr. Danilovics'
condominium . . . . . . . . . . . . . . . . 32I Photo, eastbound view from Mr. Danilovics' condominium . . . . . . . . . . 34J Photo, aerial view of neighborhood. . . . . 34
202-234-4433Neal R. Gross & Co., Inc.
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1 P-R-O-C-E-E-D-I-N-G-S
2 3:18 p.m.
3 INTERIM CHAIRMAN ALBERTI: The
4 next case I'm going to call is Case No. 11-
5 CMP-00175. This is a show cause hearing
6 regarding Mimi & D, LLC, trading as Mood,
7 License No. 86037.
8 Parties forward and introductions,
9 please?
10 MS. PHILLIPS: Louise Phillips,
11 Assistant Attorney General for the District of
12 Columbia. Good afternoon again, Board
13 Members.
14 INTERIM CHAIRMAN ALBERTI: Good
15 afternoon. Hello.
16 MR. WOODSON: Morning, Chair, or
17 good afternoon, Chair --
18 INTERIM CHAIRMAN ALBERTI: Good
19 afternoon, Mr. Woodson.
20 MR. WOODSON: I'm losing track of
21 time here -- and Members of the Board. I'm
22 Roderic Woodson, along with Tori Gordon with
202-234-4433Neal R. Gross & Co., Inc.
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1 the law firm of Holland & Knight, counsel to
2 Mood Lounge.
3 And with your indulgence, Mr.
4 Chairman, I have asked Ms. Gordon to handle
5 the proceeding for today.
6 INTERIM CHAIRMAN ALBERTI: Okay.
7 Fine. And with you is?
8 MR. WOODSON: This is Tori Gordon.
9 And this is the owner of Mood Lounge.
10 MS. BEYENE: Abeba Beyene.
11 INTERIM CHAIRMAN ALBERTI: And
12 your name, please?
13 MS. BEYENE: Abeba Beyene. Abeba.
14 INTERIM CHAIRMAN ALBERTI: I'm
15 sorry, Beyene?
16 MS. BEYENE: Yes, last name is
17 Beyene.
18 INTERIM CHAIRMAN ALBERTI: Or is
19 it Abebabeyene? Is it Ms. Beyene?
20 MS. BEYENE: Yes.
21 INTERIM CHAIRMAN ALBERTI: Okay.
22 Great. Thank you. I just want to make sure
202-234-4433Neal R. Gross & Co., Inc.
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1 I have that right. Please be seated.
2 MR. WOODSON: Thank you.
3 INTERIM CHAIRMAN ALBERTI: Okay.
4 This is a show cause hearing.
5 Just one moment, please.
6 This is a show cause hearing. Are
7 there any preliminary matters before we begin?
8 MS. PHILLIPS: No, there are not,
9 Mr. Chair.
10 INTERIM CHAIRMAN ALBERTI: Okay.
11 Hearing that there are no preliminary matters,
12 let's proceed. How many witnesses will have,
13 Ms. Phillips?
14 MS. PHILLIPS: Three.
15 INTERIM CHAIRMAN ALBERTI: Three?
16 Okay. And, Ms. Gordon, how many witnesses?
17 MS. GORDON: We'll have one.
18 INTERIM CHAIRMAN ALBERTI: One
19 witness? Okay. Do we need to call the rule
20 on witnesses, Ms. Phillips? Or, Ms. Gordon,
21 because I guess --
22 MS. PHILLIPS: Yes, I'm the one
202-234-4433Neal R. Gross & Co., Inc.
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1 that has three.
2 INTERIM CHAIRMAN ALBERTI: You're
3 the one that has three. Ms. Gordon, do we
4 need to call the rule on witnesses?
5 MR. WOODSON: Yes.
6 MS. GORDON: Yes.
7 INTERIM CHAIRMAN ALBERTI: Yes?
8 MS. GORDON: Yes.
9 INTERIM CHAIRMAN ALBERTI: Okay.
10 So, Ms. Phillips, do you want to tend to that?
11 Okay. Are we set to proceed?
12 MS. PHILLIPS: We are set to
13 proceed as far as I'm concerned.
14 INTERIM CHAIRMAN ALBERTI: All
15 right. Very good. Okay. We will have
16 opening statements. Five minutes for each
17 side. Ms. Phillips, please begin.
18 MS. PHILLIPS: Thank you, Mr.
19 Chair. This is a single charge notice that
20 concerns a noise violation pursuant to a
21 voluntary agreement that has contained within
22 it various procedural matters as to how noise
202-234-4433Neal R. Gross & Co., Inc.
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1 complaints are to be addressed.
2 It is the contention of the
3 District in this particular case that the
4 requirements of the voluntary agreement were
5 complied with by the residents who brought the
6 complaint and investigated by the ABRA
7 investigator, and that at the end of the day
8 the Board should find in favor of the
9 violation being upheld.
10 INTERIM CHAIRMAN ALBERTI: Thank
11 you, Ms. Phillips.
12 Ms. Gordon?
13 MS. GORDON: Good afternoon,
14 Chairman Alberti and Members of the Board. We
15 are here today in accordance with D.C. Code
16 Section 25-446 in a show cause notice related
17 to an alleged violation of a voluntary
18 agreement.
19 Under the voluntary agreement
20 agreed to in March 2008 with Mood Lounge's
21 predecessor and neighborhood residents, the
22 Applicant is required to take all necessary
202-234-4433Neal R. Gross & Co., Inc.
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1 actions to ensure that music, noise and
2 vibrations from the establishment are not
3 audible within any adjacent residential
4 properties.
5 You will hear in today's testimony
6 and see in the case reports that the Applicant
7 has taken the required actions underneath the
8 voluntary agreement. The Applicant has been
9 responsive to the concerns of neighbors and
10 ABRA, which is shown on May 15th and May 19th
11 in the case reports. The Applicant has
12 purchased a new sound limiter for Mood Lounge.
13 The Applicant has installed soundproofing and
14 disconnected numerous speakers and bass
15 throughout Mood Lounge to further reduce the
16 levels of music throughout the establishment.
17 And most importantly, the Applicant has
18 maintained the volume levels that were agreed
19 to by ABRA and the Complainants on May 19th.
20 The Attorney General may try to
21 distract you with matters that are not
22 pertinent to this show cause notice,
202-234-4433Neal R. Gross & Co., Inc.
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1 particularly the incidents that happened on
2 May 15th and May 19th, 2011, and you should
3 not be distracted by this. The purpose of
4 this hearing is to address the issues on the
5 nights at hand and whether based on those
6 actions the Board should take a corrective
7 action in this case.
8 The evidence will confirm that
9 Mood Lounge has been compliant with the
10 voluntary agreement. For these reasons the
11 Board should dismiss the charge that is the
12 subject of the show cause hearing and Mood
13 Lounge should not be fined or suspended under
14 D.C. law. Thank you.
15 INTERIM CHAIRMAN ALBERTI: Thank
16 you, Ms. Gordon.
17 Ms. Phillips, would you like to
18 call your first witness?
19 MS. PHILLIPS: I would indeed.
20 INTERIM CHAIRMAN ALBERTI: So
21 would your first witness stand and raise your
22 right hand? Do you solemnly affirm that the
202-234-4433Neal R. Gross & Co., Inc.
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1 testimony you're about to give will be the
2 truth, the whole truth and nothing but the
3 truth?
4 MR. DANILOVICS: I do.
5 INTERIM CHAIRMAN ALBERTI: Thank
6 you. Please be seated.
7 MS. PHILLIPS: Mr. Chair, I would
8 like to present a notebook full of exhibits
9 for him to refer to.
10 INTERIM CHAIRMAN ALBERTI: Okay.
11 Has --
12 MS. PHILLIPS: Yes.
13 INTERIM CHAIRMAN ALBERTI: Ms.
14 Gordon, have you seen this and --
15 MS. GORDON: Yes, I have.
16 INTERIM CHAIRMAN ALBERTI: Okay.
17 Thank you. Please.
18 MS. PHILLIPS: Thank you.
19 MR. WOODSON: Mr. Alberti, with
20 your indulgence, please, we've seen this
21 document as the Attorney General has noted,
22 and we object to the submission of this
202-234-4433Neal R. Gross & Co., Inc.
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1 material or the transmission or sponsorship of
2 this material by this witness. The document
3 contains information and activities associated
4 with matters that are not in issue in the
5 proceeding. We are concerned with activities
6 of Mood Lounge on dates specific. This
7 witness intends to sponsor a document which
8 discusses activities beyond the framework of
9 these dates in an effort to create in the mind
10 of the Board a pattern of activity that is not
11 the subject of the proceeding today and we
12 object to the use of this material in an
13 effort to establishment matters outside of the
14 scope of issues in the show cause today.
15 INTERIM CHAIRMAN ALBERTI: Ms.
16 Phillips, would you like to respond?
17 MS. PHILLIPS: I would indeed, Mr.
18 Chair. The voluntary agreement is very, very
19 specific about the steps that need to be taken
20 prior to reporting this matter to ABRA and
21 having ABRA act upon it, and therefore the
22 preceding events need to be established in
202-234-4433Neal R. Gross & Co., Inc.
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1 brief so that you can have a perspective. The
2 District does not intend to go beyond the
3 dates of the notice except for one additional
4 question, which I'm sure Mr. Woodson will
5 object to when it gets to that, but that's it.
6 We need to establish that what the voluntary
7 agreement requires does indeed -- was indeed
8 met. Plus, this witness will also establish
9 what occurred within the time period of this
10 notice with regard to letters and with regard
11 to the test that was conducted by ABRA.
12 MR. WOODSON: Mr. Alberti --
13 INTERIM CHAIRMAN ALBERTI: Well, I
14 just want to ask Ms. Phillips a question.
15 MR. WOODSON: Yes.
16 INTERIM CHAIRMAN ALBERTI: Ms.
17 Phillips, I'm a little slow here, so bear with
18 me.
19 MS. PHILLIPS: It's been a long
20 day, I hear.
21 INTERIM CHAIRMAN ALBERTI: Yes.
22 My recollection is there's a notice of cure in
202-234-4433Neal R. Gross & Co., Inc.
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1 the voluntary agreement.
2 MS. PHILLIPS: There is. There
3 are notice to cure -- notice and time to cure
4 requirements of the voluntary agreement, and
5 they're very specific.
6 INTERIM CHAIRMAN ALBERTI: And
7 you're saying that the documentation that you
8 want to present through this witness is
9 related to that?
10 MS. PHILLIPS: Right, and it's --
11 INTERIM CHAIRMAN ALBERTI: And
12 it's a process of curing the original
13 complaint?
14 MS. PHILLIPS: It is in the
15 process of establishing that the Complainants
16 complied with the voluntary agreement as they
17 are requesting that the establishment comply
18 with the voluntary agreement. And without
19 some sort of testimony about the precursors
20 that were required until we got to this stage
21 where a notice and a problem was identified,
22 then the Board is operating in less than a
202-234-4433Neal R. Gross & Co., Inc.
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1 perfect context.
2 Additionally, this witness will
3 explain what the neighborhood looks like and
4 other issues in the neighborhood that will
5 provide in brief a context in which the Board
6 can look at this notice. And all of the
7 information that will be introduced is one
8 either contained in the investigative report,
9 which if history is any predictor, counsel for
10 the establishment had before I identified it
11 as an exhibit that I would be using and
12 offering in evidence at this hearing.
13 And attached to those
14 investigative reports, of which there are two,
15 175 and 175A, there are various exhibits which
16 are in part to be identified by this witness,
17 in part by the other witness that I will be
18 calling, community witnesses, two community
19 witnesses.
20 And then the remainder of the
21 evidence to be discussed will be introduced
22 and identified by the investigator. All of
202-234-4433Neal R. Gross & Co., Inc.
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1 these things that we will be discussing were
2 looked at by the investigator, from what I can
3 tell.
4 INTERIM CHAIRMAN ALBERTI: Thank
5 you, Ms. Phillips.
6 Mr. Woodson?
7 MR. WOODSON: Yes, Mr. Alberti,
8 this is a stunning situation. We have one
9 event on one day. We have two investigative
10 reports that speak for themselves. This is an
11 effort to create a mountain out of this
12 molehill. If the issue -- if the Board has
13 two investigative reports before it which
14 really outline the whole circumstance, this
15 testimony, if anything, is a redundancy. All
16 of the discussion about -- the proposed
17 discussion about what happened, with whom, by
18 what, by when seems to us to really be beside
19 the point.
20 The voluntary agreement says that
21 the Applicant will take steps to resolve the
22 noise issues. When the noise issue was
202-234-4433Neal R. Gross & Co., Inc.
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1 brought to attention, the investigative agent
2 for the Board came to the site. This is all
3 in the investigative report, that's a matter
4 of record before your body, that steps were
5 taken to ameliorate the circumstance, and
6 there we have it. All of this additional
7 discussion seems not only redundant but beside
8 the point and really is a conduit to enlarge
9 the proceeding beyond the straightforward
10 issues, the single issue that is presented
11 today in the case. Thank you.
12 INTERIM CHAIRMAN ALBERTI: Thank
13 you, Mr. Woodson.
14 Ms. Phillips, I have a question
15 for you. So are you trying to -- with these
16 documents, at least in part, are you trying to
17 provide evidence that Protestants have met
18 their obligations under Section 16 of the
19 voluntary agreement? This is a notice and
20 enforcement before the ABC Board. In the
21 event of a violation of provisions of the
22 voluntary agreement, the Applicant shall be
202-234-4433Neal R. Gross & Co., Inc.
Page 17
1 notified in writing, etcetera.
2 MS. PHILLIPS: Yes, in part. And
3 also, the District is trying to look at page
4 2, Section 6, Applicant will take all
5 necessary steps to ensure that music, noise
6 and vibrations are not disruptive to adjacent
7 residential properties' occupants' reasonable
8 use of areas of their property. Should any
9 sound, noise or music be heard in any
10 residential premises, Applicant will take
11 immediate remedial action. And that's before
12 you get to the notice requirements in the
13 voluntary agreement.
14 So in order to establish what Mr.
15 Woodson is -- that the neighborhood and
16 Complainants have been reasonable, I think we
17 need a little bit of information before the
18 Board to establish that the requirements of
19 the voluntary agreement, which is what we're
20 here to discuss, were met. Additionally, that
21 kind of information should be in the record if
22 this matter goes elsewhere.
202-234-4433Neal R. Gross & Co., Inc.
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1 MR. WOODSON: Mr. Alberti, with
2 all due respect to my learned colleague, the
3 investigative -- if this -- if we were
4 beginning this proceeding with the
5 investigative reports, all of this would be
6 unnecessary. The investigative report goes
7 right to that very matter. There was a
8 complaint, there was an investigation by ABRA
9 and there were steps taken by the Applicant,
10 or by the owner to in fact remediate the sound
11 that was the source of the unreadiness in the
12 beginning. All of this is in the
13 investigative report.
14 Having to listen and expand the
15 record with additional testimony, which
16 essentially seeks to establish the same thing
17 again, we still object to this. It is beyond
18 the scope of the one narrow order in the case
19 today and we -- with all due respect, I think
20 the Board's time, attention and resources are
21 better focused on what its agents found and
22 did on the moments in question through the
202-234-4433Neal R. Gross & Co., Inc.
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1 investigative reports.
2 INTERIM CHAIRMAN ALBERTI: Well,
3 Mr. Woodson, I'm going to overrule the
4 objection. I think item 6 and item 16 of the
5 VA, taken together, speak to the fact that
6 there has to be a series of incidents over a
7 period of time to prove a violation of the
8 voluntary agreement. And I believe that
9 that's what Ms. Phillips intends to show
10 through this testimony. So I'm going to allow
11 the testimony.
12 MR. WOODSON: Well, would you
13 permit me notice my objection for the record?
14 INTERIM CHAIRMAN ALBERTI: To --
15 pardon?
16 MR. WOODSON: Just notice my
17 objection for the record.
18 INTERIM CHAIRMAN ALBERTI: Yes,
19 it's noted for the record.
20 Please proceed, Ms. Phillips.
21 MS. PHILLIPS: And, Mr. Alberti,
22 Mr. Chair, I will also give the learned
202-234-4433Neal R. Gross & Co., Inc.
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1 counsel to my left a standing objection so
2 that they will not have to object to each
3 question, which should speed the matter along,
4 if necessary.
5 INTERIM CHAIRMAN ALBERTI: Do you
6 desire a standing objection, Mr. Woodson?
7 MR. WOODSON: Well, I'm not quite
8 sure what her standing objection is, but I
9 will await the questions that she asks and
10 then decide whether an objection is warranted.
11 INTERIM CHAIRMAN ALBERTI: I think
12 it's best to proceed that way, Mr. Woodson.
13 MR. WOODSON: Yes.
14 INTERIM CHAIRMAN ALBERTI: I
15 agree. I think we'll --
16 MS. PHILLIPS: Thank you, Mr.
17 Chair.
18 INTERIM CHAIRMAN ALBERTI: We'll
19 deal with the time issue as it unfolds.
20 Continue, Ms. Phillips.
21 MS. PHILLIPS: May I begin now?
22 INTERIM CHAIRMAN ALBERTI: Yes,
202-234-4433Neal R. Gross & Co., Inc.
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1 you may begin.
2 MS. PHILLIPS: Would you state
3 your name for the record and spell it for the
4 court reporter, please?
5 MR. DANILOVICS: George
6 Danilovics, G-E-O-R-G-E. The harder part, D-
7 A-N-I-L-O-V-I-C-S.
8 MS. PHILLIPS: And where do you
9 reside?
10 MR. DANILOVICS: I'm at 1316
11 Naylor Court, Northwest, Unit No. 4.
12 MS. PHILLIPS: Is that a
13 condominium building immediately adjacent to
14 the establishment in question, Mood Lounge?
15 MR. DANILOVICS: Yes, it is.
16 MS. PHILLIPS: And where do you
17 work?
18 MR. DANILOVICS: I work at the
19 Washington Council of Governments.
20 MS. PHILLIPS: Let me ask you to
21 look at Exhibit A, tab A of the notebook that
22 you see. And then there is a -- when you get
202-234-4433Neal R. Gross & Co., Inc.
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1 to tab A there are tabs, and look at tab 3,
2 the second page of tab 3. Can you identify
3 the second page of Exhibit A, attachment 3,
4 please?
5 MR. DANILOVICS: Yes, this is a
6 letter that the Owners of the NINE, which is
7 the name of the condominium association, sent
8 to Mood Lounge in a specific complaint to
9 noise and asking them that they take the steps
10 that are required in the voluntary agreement
11 to remedy those noises.
12 MS. PHILLIPS: Was this the first
13 official written notice of a noise complaint?
14 MR. DANILOVICS: The first
15 official written, yes.
16 MS. PHILLIPS: It was? And --
17 MEMBER NOPHLIN: And speak up,
18 please.
19 MR. DANILOVICS: I'm sorry.
20 INTERIM CHAIRMAN ALBERTI: Please
21 speak up, Mr. Danilovics.
22 MR. DANILOVICS: Sorry. Yes, it
202-234-4433Neal R. Gross & Co., Inc.
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1 was.
2 INTERIM CHAIRMAN ALBERTI: And
3 actually if you could face us. I know it's a
4 little awkward, but if you face us when you
5 answer the questions, because -- and I believe
6 it's awkward --
7 MR. DANILOVICS: Sure thing.
8 INTERIM CHAIRMAN ALBERTI: Thank
9 you.
10 MS. PHILLIPS: Prior to that time
11 had you given any -- had you made any verbal
12 complaints in an attempt to resolve this
13 matter?
14 MR. DANILOVICS: Yes,
15 representatives from the lounge were at some
16 ANC hearings and at Blagden Alley/Naylor Court
17 Association meetings and we approached them
18 informally at those venues about the noise
19 issue.
20 MS. PHILLIPS: Now, when did Mood
21 Lounge become a resident of your neighborhood?
22 MR. DANILOVICS: I believe they
202-234-4433Neal R. Gross & Co., Inc.
Page 24
1 moved in in January of 2011.
2 MS. PHILLIPS: Did you meet them
3 in a good neighbor capacity prior to your
4 complaints?
5 MR. DANILOVICS: We did not.
6 MS. PHILLIPS: If you will look at
7 attachment B, I mean Exhibit B, attachment --
8 Exhibit 1 to -- and that's the second
9 investigative report, B is. And Exhibit 1.
10 And it may not be a one. It just may be a
11 tab.
12 MR. DANILOVICS: Yes.
13 MS. PHILLIPS: Can you identify
14 that document in Exhibit 1?
15 MR. DANILOVICS: Is this the ABRA
16 complaint related to trash and noise again?
17 MS. PHILLIPS: Okay. So --
18 MR. DANILOVICS: It's the one on
19 the right?
20 MS. PHILLIPS: Right.
21 MR. DANILOVICS: Okay.
22 MS. PHILLIPS: Looks like this?
202-234-4433Neal R. Gross & Co., Inc.
Page 25
1 MR. DANILOVICS: Yes.
2 MS. PHILLIPS: All right. So this
3 was another written report about noise,
4 because this complaint is about noise,
5 correct?
6 MR. DANILOVICS: Correct, this is
7 another submission related to noise.
8 MS. PHILLIPS: And what date was
9 this notice sent? It looks like an online
10 complaint form that ABRA has.
11 MR. DANILOVICS: I'm trying to
12 find the date on this.
13 MS. PHILLIPS: Mid-right.
14 MR. DANILOVICS: Oh, there it is.
15 On the date -- sorry -- May 15th.
16 MS. PHILLIPS: 2011?
17 MR. DANILOVICS: 2011.
18 MS. PHILLIPS: And did you fill
19 this complaint out online through ABRA Web
20 site?
21 MR. DANILOVICS: Yes, it was the
22 online pdf form.
202-234-4433Neal R. Gross & Co., Inc.
Page 26
1 MS. PHILLIPS: And subsequently
2 did anything happen -- did an ABRA
3 investigator come out and talk to you with
4 regard to this May 15th complaint?
5 MR. DANILOVICS: Yes.
6 MS. PHILLIPS: And from your
7 actual attendance, not from what anybody else
8 did, but from what you did, did you meet with
9 that ABRA investigator?
10 MR. DANILOVICS: Yes, I did.
11 MS. PHILLIPS: And what were the
12 circumstances and in brief what happened?
13 MR. DANILOVICS: It was an
14 afternoon, and I'd have to look to find the
15 exact date, but the ABRA investigator came
16 out. It was myself, another one of the
17 witnesses and a representative from Mood
18 Lounge to do sound tests. I was in my
19 condominium while they were adjusting volumes
20 within Mood Lounge and it was, you know, can
21 you hear the sounds now and we -- you know,
22 they adjusted the volume until it was an
202-234-4433Neal R. Gross & Co., Inc.
Page 27
1 acceptable level. Took about a half hour for
2 that process to --
3 MS. PHILLIPS: And you were with
4 another condo owner?
5 MR. DANILOVICS: Yes.
6 MS. PHILLIPS: Was that other
7 condo owner in his condo, not in yours, or
8 what?
9 MR. DANILOVICS: I was in mine, so
10 I can't tell you where he was. He wasn't in
11 my condo.
12 MS. PHILLIPS: Okay. Good. All
13 right. I want you to turn to Exhibit D. And
14 while you're finding --
15 MR. DANILOVICS: Yes, I got it.
16 MS. PHILLIPS: -- Exhibit D, does
17 your condominium share an actual wall with the
18 establishment Mood Lounge, or is there some
19 space between your condo and Mood Lounge?
20 MR. DANILOVICS: My condo actually
21 -- you can't see on this picture, but it
22 doesn't share a wall with Mood Lounge. The
202-234-4433Neal R. Gross & Co., Inc.
Page 28
1 unit below me does share a wall, which is the
2 second floor. I'm actually the third and
3 fourth floor of the building, so I'm up above
4 Mood Lounge.
5 MS. PHILLIPS: So Exhibit D, what
6 does that show?
7 MR. DANILOVICS: That shows the
8 front of the buildings along 9th Street,
9 Northwest.
10 MS. PHILLIPS: And so it shows the
11 front of your building and the front of Mood
12 Lounge. But in the foreground is there an art
13 gallery or something there?
14 MR. DANILOVICS: Yes, Bishop
15 Lamont Art Gallery is the first building.
16 MS. PHILLIPS: And do they hold
17 musical events in that establishment from time
18 to time?
19 MR. DANILOVICS: Yes, they do.
20 They get one-night liquor licenses from ABRA
21 to host events and gallery openings.
22 MS. PHILLIPS: Do they have like
202-234-4433Neal R. Gross & Co., Inc.
Page 29
1 chamber music or music that's similar to the
2 type of music that Mood Lounge has, or do you
3 know?
4 MR. DANILOVICS: I have not been
5 inside to tell you what type of music, but it
6 sounds like they have a DJ providing the music
7 for them. It doesn't seem like there's a live
8 band or any type of music. It seems recorded
9 dance music.
10 MS. PHILLIPS: Have you had a
11 chance or has it been necessary to make
12 complaints against that particular
13 establishment for music?
14 MR. DANILOVICS: No, the
15 neighborhood's had no complaints and I've had
16 no issue with the noise from Bishop Lamont.
17 MS. PHILLIPS: If you would turn
18 to Exhibit E, please?
19 MR. DANILOVICS: Okay.
20 MS. PHILLIPS: What is that?
21 MR. DANILOVICS: This is a shot up
22 Naylor Court looking eastbound. You can see
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1 the NINE Condominium, which is the red brick
2 building and Mood Lounge, which is the gray
3 building. So this is the rear of the
4 establishments.
5 MS. PHILLIPS: So if I'm looking
6 into the picture on my left --
7 MR. DANILOVICS: Yes.
8 MS. PHILLIPS: -- that would be
9 Mood Lounge? I mean, on the left the -- see,
10 I don't have a color picture. I'm sorry.
11 MR. DANILOVICS: Yes.
12 MS. PHILLIPS: So if that is Mood
13 Lounge --
14 MR. DANILOVICS: Correct.
15 MS. PHILLIPS: -- then yours is
16 the lighter brick with the two looks like
17 garage doors?
18 MR. DANILOVICS: Yes.
19 MS. PHILLIPS: Is that a gate
20 between you and the next establishment?
21 MR. DANILOVICS: It's a stairwell
22 between us and the next establishment, which
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1 is a sandwich shop.
2 MS. PHILLIPS: Does the gate lead
3 to an alley which leads all the way to 9th
4 Street?
5 MR. DANILOVICS: It's sort of an
6 open-air courtyard between the sandwich shop
7 and where Bishop Lamont is in the front on 9th
8 Street.
9 MS. PHILLIPS: And may I assume
10 that the sandwich shop doesn't have live music
11 ever?
12 MR. DANILOVICS: No, they do not.
13 MS. PHILLIPS: Okay. All right.
14 And No. F?
15 MR. DANILOVICS: Okay.
16 MS. PHILLIPS: What is that?
17 MR. DANILOVICS: This is the shot
18 of Mood Lounge, a close up of the back with
19 their please do not urinate in alley signs and
20 the request for people not to park in the
21 alley.
22 MS. PHILLIPS: Okay. And G?
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1 MR. DANILOVICS: This is a shot of
2 the NINE, which is the condominium I live in
3 where you can see -- as you pointed out
4 earlier, the first floor is storage units.
5 The second floor is a condo unit that is owned
6 by somebody else. And then you'll see the
7 third and the fourth floor are my unit.
8 MS. PHILLIPS: Okay. You have a
9 two-story unit?
10 MR. DANILOVICS: Yes.
11 MS. PHILLIPS: Oh. And I see a
12 fence.
13 MR. DANILOVICS: That's an outdoor
14 deck that I have that is on the roof of the
15 second floor.
16 MS. PHILLIPS: Okay. And that's
17 your deck?
18 MR. DANILOVICS: Yes.
19 MS. PHILLIPS: And H?
20 MR. DANILOVICS: This is a view
21 from inside my unit on the third floor, which
22 is my first floor, looking eastbound where you
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1 can see the southern wall of Mood Lounge and
2 then an outdoor deck space shared by two other
3 condo unit owners in the building.
4 MS. PHILLIPS: But that's not your
5 deck?
6 MR. DANILOVICS: No, it's not my
7 deck.
8 MS. PHILLIPS: Okay. Now as I
9 look at this picture H, it looks like the
10 walls of the NINE merge with an attachment to
11 the wall of Mood Lounge. Is that a fair
12 assessment of this picture?
13 MR. DANILOVICS: That's what it
14 looks like from the second floor is that there
15 is a gap between the two buildings.
16 MS. PHILLIPS: Yes.
17 MR. DANILOVICS: And then they
18 come together at the first floor.
19 MS. PHILLIPS: Okay. And that is
20 at the level of the first floor of another
21 condominium, not yours?
22 MR. DANILOVICS: Correct.
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1 MS. PHILLIPS: All right. I?
2 MR. DANILOVICS: This was from the
3 second floor just outside my deck looking
4 eastbound where you can see that the second
5 floor of the structures of Mood Lounge and my
6 condo building are actually abutting one
7 another. And that's further eastbound there
8 is a two or three-foot gap between the two
9 buildings.
10 MS. PHILLIPS: All right. And do
11 you recall, did Mood Lounge always have a
12 second floor?
13 MR. DANILOVICS: The building
14 always had one. I can't say if they've always
15 used it.
16 MS. PHILLIPS: Okay. And J?
17 MR. DANILOVICS: This is an aerial
18 shot of the neighborhood pointing out
19 locations of Mood Lounge and the NINE, also
20 highlighting other businesses or organizations
21 in the area that do have activities that
22 produce noise, specifically the Bishop Lamont
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1 Art Gallery. We do have a band recording
2 studio in Naylor Court. We have a photography
3 studio, which also has -- holds openings with
4 entertainment and lots of people. And we also
5 have two churches.
6 MS. PHILLIPS: When the test was
7 completed and you were indeed satisfied that
8 can you hear me now was adjusted to a point
9 where --
10 MR. DANILOVICS: Yes.
11 MS. PHILLIPS: -- you couldn't
12 really hear you now, what were you looking
13 for? Were you looking for complete silence in
14 your condominium?
15 MR. DANILOVICS: No, and that's
16 actually what we went through with the
17 inspector is we did get to a level where I
18 could have my windows open and not hear any
19 noise, because he specifically asked, you
20 know, are your windows open or are your
21 windows closed? And at one point my windows
22 were open and I could not hear anything. We
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1 then got to a point where I was able to say my
2 windows are open, but I can hear, but it's
3 okay. If I shut the windows, I can't hear
4 anything. The level that I was even expecting
5 was just to be able to have the windows shut
6 and have my television on and be able to hear
7 my television and not the music from outside.
8 MS. PHILLIPS: Now after the test
9 was completed was there a period of time when
10 the noise level was acceptable to you?
11 MR. DANILOVICS: Yes, it was
12 acceptable for about two weeks.
13 MS. PHILLIPS: I have no further
14 questions of this witness. I would move for
15 the admission of all of the pictures that we
16 have discussed. That would be Exhibit D
17 through J, which includes the map, and Exhibit
18 A, attachment 3 and Exhibit B, attachment 1.
19 INTERIM CHAIRMAN ALBERTI: Thank
20 you, Ms. Phillips. Noting Mr. Woodson's
21 objections, we will --
22 MR. WOODSON: Yes, Mr. Chairman,
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1 the photographs speak for themselves. I must
2 observe that the witness' remarks about
3 direction may have been somewhat misplaced.
4 Mood Lounge is north not than east. And
5 Naylor Alley runs north and south rather than
6 east and west, but --
7 INTERIM CHAIRMAN ALBERTI: Well,
8 this all can be cleared up --
9 MR. WOODSON: Past that. Past
10 that.
11 INTERIM CHAIRMAN ALBERTI: --
12 during cross-examination.
13 MR. WOODSON: Past that, Your
14 Honor, Mr. Chairman, we do not object to the
15 photographs.
16 INTERIM CHAIRMAN ALBERTI: Okay.
17 MR. WOODSON: We do object to the
18 submission of this other Exhibit meaning what
19 looks like to be Exhibit C and --
20 MS. PHILLIPS: That hasn't been
21 identified for the record yet.
22 MR. WOODSON: Okay. So let me be
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1 sure what exhibits we are talking about.
2 Would you restate them again, counsel?
3 MS. PHILLIPS: Certainly. I
4 assume that you're not objecting to the
5 pictures or the maps, so we can move to the
6 other two exhibits?
7 MR. WOODSON: Yes. Yes.
8 MS. PHILLIPS: All right. Exhibit
9 A is the first investigative report. And
10 attached to Exhibit A are I believe five
11 exhibits. And I have requested on behalf of
12 the District to admit Exhibit A, attachment 3.
13 And to be more specific, the second page of
14 attachment 3, which is actually an exhibit to
15 the first investigative report.
16 INTERIM CHAIRMAN ALBERTI: So
17 Exhibit A is an investigative report?
18 MS. PHILLIPS: Right.
19 INTERIM CHAIRMAN ALBERTI: And it
20 has --
21 MS. PHILLIPS: Five exhibits. And
22 I'm asking for the second page of the third
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1 exhibit to be admitted.
2 INTERIM CHAIRMAN ALBERTI: Okay.
3 MS. PHILLIPS: That's why I used 1
4 and As and Bs.
5 INTERIM CHAIRMAN ALBERTI: I got
6 you.
7 MR. WOODSON: Yes, we do object to
8 the inclusion of Exhibit 3 to the
9 investigative report.
10 INTERIM CHAIRMAN ALBERTI: Before
11 we get to that, Mr. Woodson, this is part of
12 the ABRA record, am I correct?
13 MS. PHILLIPS: It is indeed part
14 of the ABRA record.
15 INTERIM CHAIRMAN ALBERTI: So, Mr.
16 Woodson --
17 MR. WOODSON: Well --
18 INTERIM CHAIRMAN ALBERTI: -- the
19 Board will take administrative note of what's
20 in our record.
21 MR. WOODSON: Well, I certainly
22 appreciate that, Mr. Alberti. That's why I
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Page 40
1 stated in the beginning we didn't need this
2 witness. If what we're doing is admitting the
3 Board's investigative record, we could have
4 done that by stipulation and then talked about
5 pictures. So --
6 INTERIM CHAIRMAN ALBERTI: All
7 right. Well, we're talking about the exhibit,
8 whether it should be admitted or not, so --
9 MR. WOODSON: Yes, we cannot
10 object to that. It's --
11 INTERIM CHAIRMAN ALBERTI: Okay.
12 MR. WOODSON: -- the Board's
13 record.
14 INTERIM CHAIRMAN ALBERTI: Okay.
15 So the other exhibit now is?
16 MS. PHILLIPS: B, which is the
17 second investigative report, and it has three
18 exhibits attached to it as I recall. And
19 Exhibit 1 is to Exhibit B, District Exhibit B,
20 is the online complaint form which this
21 witness identified.
22 INTERIM CHAIRMAN ALBERTI: Okay.
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1 And I assume, Mr. Woodson, that you're going
2 to have objections to some future exhibits,
3 but to these two?
4 MR. WOODSON: Absolutely not, Mr.
5 Chairman.
6 INTERIM CHAIRMAN ALBERTI: Okay.
7 Very good.
8 MR. WOODSON: As I stated before,
9 we could have started with this.
10 INTERIM CHAIRMAN ALBERTI: Yes.
11 Okay. But, you know, that's the prerogative
12 of the Attorney General's Office as they
13 present the case. So we will accept those
14 into evidence, Ms. Phillips.
15 MS. PHILLIPS: Thank you, Mr.
16 Chair. I have no further questions of this
17 witness, Mr. Chair.
18 INTERIM CHAIRMAN ALBERTI: Okay.
19 Questions from the Board? I have a question.
20 Okay. The first exhibit you spoke about was
21 a letter to Mood Lounge?
22 MR. DANILOVICS: Yes.
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1 INTERIM CHAIRMAN ALBERTI: And
2 what was the date of that letter?
3 MR. DANILOVICS: That date was
4 March 9th, 2011, sir.
5 INTERIM CHAIRMAN ALBERTI: March
6 9th, 2011. And how was that letter delivered
7 to Mood Lounge?
8 MR. DANILOVICS: I was not the
9 person who delivered that, so I can't answer
10 that question.
11 INTERIM CHAIRMAN ALBERTI: Okay.
12 And the second exhibit you spoke to, I believe
13 it was a notice to ABRA on May 15th. Is that
14 correct?
15 MR. DANILOVICS: Yes.
16 INTERIM CHAIRMAN ALBERTI: A
17 complaint to ABRA?
18 MR. DANILOVICS: Yes.
19 INTERIM CHAIRMAN ALBERTI: As a
20 result of that complaint when did the
21 investigator visit your residence?
22 MR. DANILOVICS: The investigator
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1 didn't specifically say that he was visiting
2 for that complaint, or he didn't identify
3 which complaint.
4 INTERIM CHAIRMAN ALBERTI: So what
5 day did the -- so the investigator visited
6 your residence --
7 MR. DANILOVICS: Yes.
8 INTERIM CHAIRMAN ALBERTI: -- on
9 what date?
10 MR. DANILOVICS: I'd have to look
11 to find that on the calendar, which is another
12 exhibit.
13 MS. PHILLIPS: It's in the
14 investigative report and somebody else will
15 testify to that, Mr. Alberti.
16 INTERIM CHAIRMAN ALBERTI: Okay.
17 Fine. So you can't answer that?
18 MR. DANILOVICS: Yes, I --
19 INTERIM CHAIRMAN ALBERTI: That's
20 fine. That's fine. Okay. No further
21 questions.
22 Any questions from the Board?
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1 MEMBER NOPHLIN: I have just one
2 question, Mr. Chair.
3 INTERIM CHAIRMAN ALBERTI: Mr.
4 Nophlin?
5 MEMBER NOPHLIN: In your testimony
6 you mentioned that you did -- I guess you met
7 with the owners, the ANCs, I guess. And they
8 met? There was some discussion?
9 MR. DANILOVICS: Yes.
10 MEMBER NOPHLIN: And you didn't
11 elaborate on -- what was the problem? You
12 said it didn't work out. What was the
13 problem?
14 MR. DANILOVICS: Yes, at the ANC
15 and -- at the ANC 2 and at the Blagden
16 Alley/Naylor Court Association meetings Mr.
17 Henry was there for Mood Lounge, and we
18 approached him about the noise issues. He
19 provided us his business card and offered up,
20 you know, if we have noise issues to contact
21 him, email him. I personally have emailed him
22 while he was employed at Mood Lounge when
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1 there had been issues with noise and trash and
2 with some results and sometimes not getting
3 results.
4 MEMBER NOPHLIN: Thank you, Mr.
5 Chair.
6 INTERIM CHAIRMAN ALBERTI: Thank
7 you, Mr. Nophlin.
8 Any redirect, Ms. Phillips, based
9 on those questions?
10 MS. PHILLIPS: No, no redirect,
11 Mr. Chair.
12 INTERIM CHAIRMAN ALBERTI: Ms.
13 Gordon, any cross based on the Board's
14 questions?
15 MS. GORDON: No, sir.
16 INTERIM CHAIRMAN ALBERTI: Thank
17 you. Mr. -- I'm sorry.
18 MR. DANILOVICS: Danilovics.
19 INTERIM CHAIRMAN ALBERTI:
20 Danilovics. You may step down. Thank you.
21 MS. PHILLIPS: Thank you. The
22 District of Columbia will call Mr. Hingoraney
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1 as its next witness. I believe he's outside.
2 INTERIM CHAIRMAN ALBERTI: Okay.
3 MS. PHILLIPS: Would you like me
4 to get him or --
5 INTERIM CHAIRMAN ALBERTI: Is
6 there someone else who can get him?
7 MS. PHILLIPS: Oh.
8 INTERIM CHAIRMAN ALBERTI: Thank
9 you, Chief Jackson.
10 Mr. Hingoraney, if you would
11 approach the witness stand and raise your
12 right hand? Do you solemnly affirm that the
13 testimony you're about to give will be the
14 truth, the whole truth and nothing but the
15 truth?
16 MR. HINGORANEY: I do.
17 INTERIM CHAIRMAN ALBERTI: Thank
18 you. Please be seated.
19 MS. PHILLIPS: Will you state your
20 name for the record and spell it?
21 MR. HINGORANEY: Rishi Hingoraney,
22 R-I-S-H-I, H-I-N-G-O-R-A-N-E-Y.
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1 MS. PHILLIPS: Does he need to
2 speak up?
3 INTERIM CHAIRMAN ALBERTI: Yes,
4 Mr. Hingoraney, if you would speak up. And if
5 you could direct your answers --
6 MR. HINGORANEY: Of course. Sure.
7 INTERIM CHAIRMAN ALBERTI: --
8 towards the Board. It's a little awkward I
9 know, but this way we'll be able to hear you
10 clearly.
11 MR. HINGORANEY: Sure.
12 INTERIM CHAIRMAN ALBERTI:
13 Proceed, Ms. Phillips.
14 MS. PHILLIPS: I believe that the
15 court reporter has the mic, so when you speak
16 into the mic, he hears you, but he will let me
17 know if he cannot hear you.
18 Yes, would you tell me where you
19 reside?
20 MR. HINGORANEY: I reside at 1442
21 E Street, Southeast in Washington, D.C.
22 MS. PHILLIPS: What is your
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1 connection to the NINE?
2 MR. HINGORANEY: My family owns a
3 condominium at the NINE and my wife and I
4 manage the condo on behalf of my parents. And
5 we have been dealing with this sound issue on
6 behalf of our tenants -- two sets of tenants
7 since the beginning of the year.
8 MS. PHILLIPS: Okay. And where
9 are you employed?
10 MR. HINGORANEY: I work at NPR,
11 National Public Radio.
12 MS. PHILLIPS: Does your
13 condominium unit have a contiguous wall with
14 Mood, or is it separated by a small alley?
15 MR. HINGORANEY: We share a wall.
16 We do.
17 MS. PHILLIPS: You actually share
18 a wall?
19 MR. HINGORANEY: That's correct.
20 MS. PHILLIPS: Okay. If you will
21 turn to Exhibit G in the book. Is that your
22 condominium unit?
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1 MR. HINGORANEY: That is, yes.
2 MS. PHILLIPS: And those doors
3 that look like garage doors to me is that part
4 of your unit?
5 MR. HINGORANEY: That's not. That
6 is I believe retailer storage space right
7 below us.
8 MS. PHILLIPS: Okay. And is your
9 condominium a multi-level condominium?
10 MR. HINGORANEY: No, it's just one
11 -- well, it's got a very small staircase in
12 it, but it's considered one level.
13 MS. PHILLIPS: Do you have a deck
14 of any kind?
15 MR. HINGORANEY: We do have a
16 balcony on the rear of the condo. Sorry, on
17 the other side, which is the front of -- not
18 facing Naylor Court, we have a balcony.
19 MS. PHILLIPS: Okay. If you will
20 look briefly through the pictures that start
21 with D and end with I is there a picture of
22 your balcony in any of those, even the
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1 smallest corner of your balcony.
2 MR. HINGORANEY: Yes, in Exhibit H
3 on the lower right-hand side of the picture is
4 a picture of the left side of our balcony.
5 MS. PHILLIPS: Were you involved
6 in any witnessing of noise violations within
7 the condominium that your family owns or in
8 any other condominium prior to the first
9 written report?
10 MR. WOODSON: Mr. Chairman, I
11 object. We're not here to talk about any
12 circumstance on any day that could be of this
13 witness' choosing. The issues at hand at the
14 dates in issue in the investigative reports.
15 This is just what I thought was going to
16 happen. The witness now -- the Government is
17 now putting forth witnesses to discuss matters
18 extraneous to the circumstances discussed in
19 both of the investigative reports. They're
20 now an evidentiary matter. If the witness
21 wishes to discuss circumstances associated
22 with these dates, that's one thing, but to
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1 discuss circumstances around any date they
2 wish to choose, I submit, is improper.
3 INTERIM CHAIRMAN ALBERTI: Thank
4 you, Mr. Woodson.
5 Ms. Phillips?
6 MS. PHILLIPS: I have limited it
7 to, if not specifically to the date on which
8 that hearing -- the investigative test was
9 done, which I believe was May 17th, but you
10 know I always have to check those things; oh,
11 I'm sorry, May 19th, 2011, and earlier,
12 partially to discuss this witness' actual
13 knowledge, because as he has now testified, he
14 doesn't live in the condominium. He manages
15 it along with his spouse for his parents. So
16 I want to make sure that if he had any other
17 witnessings of noise complaints within his
18 condominium or another condominium that he
19 speaks only to those.
20 MR. WOODSON: Mr. Chairman, I
21 object to this again.
22 INTERIM CHAIRMAN ALBERTI: Well,
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1 wait, wait. I'm trying to understand what's
2 being asked.
3 MR. WOODSON: Okay.
4 INTERIM CHAIRMAN ALBERTI: So let
5 me -- just let me --
6 MR. WOODSON: Sure.
7 INTERIM CHAIRMAN ALBERTI: You're
8 asking the witness about what date?
9 MS. PHILLIPS: About any dates
10 prior to the test on May 19th in which he
11 actually witnessed noise or vibration
12 complaints in a condominium contained within
13 the NINE. He does not live there, so I want
14 to make sure that the question is predicated
15 so that if he has knowledge of other events
16 from discussions with other people that he
17 does not testify about those, but only to
18 those events of which he has actual knowledge.
19 INTERIM CHAIRMAN ALBERTI: Mr.
20 Woodson?
21 MR. WOODSON: Yes, this witness is
22 -- from what I've understood here, this
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1 witness is going to testify about May 19th.
2 Okay. Testify about May 19th. But to testify
3 about what he did or may not have done, what
4 he heard or may not have heard at some other
5 time is not an issue in the proceeding.
6 Despite the Government's repeated attempts to
7 make them issues in the proceeding, they are
8 not and I object and think that this testimony
9 is improper.
10 INTERIM CHAIRMAN ALBERTI: Ms. --
11 MS. PHILLIPS: The -- may I speak?
12 I'm sorry. I didn't mean to interrupt you,
13 Mr. Chair. The voluntary agreement is very
14 specific and I've read the portion that I on
15 behalf of the District believes is important
16 about the -- any noise complaint, any
17 vibration complaint, any anything the
18 establishment must do immediate action. And
19 then the section that the Chair pointed out
20 from having reviewed the voluntary agreement,
21 which has the notice requirements which
22 require, you know, verbal and written notice
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1 to the establishment before the condominium,
2 if they have any complaints, can go to an
3 official body like ABRA or DCRA or OAG, or
4 anything like that.
5 I think in order to establish the
6 predicate to what we're dealing with here that
7 brief testimony from but two of; I don't know
8 how many units there are in there, is
9 important to understand the context in what
10 we're dealing with.
11 MR. WOODSON: Mr. Chairman, with
12 your indulgence, please, the Government's
13 interpretation of the terms of the voluntary
14 agreement create an open-ended circumstance
15 within which they could talk about anything at
16 any time, any noise at any time and anywhere.
17 It's just too much. The complaint that we are
18 here about, the complaints that are at issue
19 before the Board today are in the
20 investigative report. This continued
21 discussion, this continued push to make this
22 matter broader than that I think is improper.
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1 INTERIM CHAIRMAN ALBERTI: Okay.
2 Mr. Woodson?
3 MR. WOODSON: Yes?
4 INTERIM CHAIRMAN ALBERTI: Just
5 one minute.
6 Okay. I am going to sustain the
7 objection. So we're not going to hear
8 complaints related to noise or privacy that
9 are outside of what is being reported in the
10 two investigative reports we have before us.
11 MS. PHILLIPS: So what you're
12 saying is everything that's predicate required
13 by the voluntary agreement, which is what got
14 us to this notice, this witness cannot testify
15 about?
16 INTERIM CHAIRMAN ALBERTI: How is
17 what this witness has to say related to --
18 this voluntary notice requires a notice to
19 cure. All right? so there has to be notice.
20 MS. PHILLIPS: Yes.
21 INTERIM CHAIRMAN ALBERTI: And
22 then there is a period of cure. All right?
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1 And then to be a legitimate complaint,
2 something has to happen after that period in
3 which we allow for the establishment to cure
4 the problem. How does his testimony relate to
5 that sequence of steps?
6 MS. PHILLIPS: Well, I believe
7 that in order to determine the reasonableness
8 of the steps which the Complainants used to
9 comply with the voluntary agreement are
10 important in brief to understand how we got to
11 the notices. ABRA is not allowed to
12 investigate until there has been notice to the
13 establishment, written notice to the
14 establishment, and an opportunity to cure for
15 which there is a 30-day grace period.
16 And then, and only then are the
17 Complainants allowed to complaint to ABRA
18 according to the voluntary agreement. And
19 then ABRA has to get an investigator to be
20 able to come out. And then if it's
21 established that there needs to be a notice
22 done. And then there's a notice done. And
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1 then there's a hearing.
2 But there are certain reasonable
3 requirements that have been engaged in before
4 the first written notice that I believe in
5 brief establish how reasonable the
6 Complainants tried to be before they resorted
7 to the voluntary agreement. And I think that
8 is important to establish the milieu in which
9 the first complaint was raised.
10 INTERIM CHAIRMAN ALBERTI: And the
11 first complaint being?
12 MS. PHILLIPS: This one that
13 caused these notices to be issued, to cause
14 these investigative reports to be done and
15 caused the notice to be written. And the
16 first written complaint to comply with the
17 voluntary agreement was March 9th.
18 INTERIM CHAIRMAN ALBERTI: I think
19 the reasonableness standard really has to
20 apply to the first letter of notice, which was
21 in March, correct?
22 MS. PHILLIPS: I --
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1 INTERIM CHAIRMAN ALBERTI: There
2 was a notice to the establishment in March, if
3 I'm correct. And I haven't seen that, but
4 that's what I understand the testimony to be,
5 there was a notice of -- saying that the sound
6 levels were unacceptable in March. Is that
7 correct?
8 MS. PHILLIPS: There was a written
9 notice complying with the voluntary agreement
10 on March 9th, 2011.
11 INTERIM CHAIRMAN ALBERTI: Right.
12 And so the reasonableness criteria I think
13 applies to that, not the subsequent
14 complaints, only -- except for the one we're
15 dealing with today.
16 MS. PHILLIPS: Right. And I'm not
17 talking about subsequent complaints. I'm not
18 talking about subsequent complaints.
19 INTERIM CHAIRMAN ALBERTI: You're
20 talking about --
21 MS. PHILLIPS: I'm talking about
22 the reasonableness that the Complainants used
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1 prior -- in their dealings with the
2 establishment prior to the official notice at
3 the last couple of sections of the voluntary
4 agreement. I'm talking about --
5 INTERIM CHAIRMAN ALBERTI: The
6 official -- prior to March?
7 MS. PHILLIPS: Prior to March.
8 And I'm talking about it in the context of the
9 voluntary agreement section that I read to
10 you, the Board --
11 INTERIM CHAIRMAN ALBERTI: Okay.
12 Mr. Woodson?
13 MR. WOODSON: Yes?
14 INTERIM CHAIRMAN ALBERTI: So
15 we're talking about prior to March, because I
16 think we need to establish the reasonableness
17 of that first letter saying we have a problem
18 here.
19 MR. WOODSON: Well, let me offer
20 this, if I could, Mr. Alberti. This notion of
21 reasonableness is really outside of the case
22 itself. The voluntary agreement, as the
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1 Government is propounding it to us and to the
2 -- not to us, to the Board, is that the
3 complaint was filed. The Government wants to
4 say that the filing of the complaint was
5 reasonable. There's no requirement that the
6 complaint be reasonable. There's nothing
7 about that.
8 INTERIM CHAIRMAN ALBERTI: Well --
9 MR. WOODSON: If I could. If I
10 could. Indulge me, Mr. Chairman. The
11 complaint was filed. The response from ABRA
12 was clear and the response from Mood Lounge to
13 ABRA's investigation and test, if you will,
14 sound test took place. All of that happened.
15 The fact that the complaint may have been
16 reasonable in the beginning is really beside
17 the point. It's not whether the complaint was
18 reasonable. It was whether the response was
19 proper, not the complaint.
20 INTERIM CHAIRMAN ALBERTI: Well --
21 MR. WOODSON: And so they have --
22 Mood Lounge has in fact responded and did in
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1 fact respond to this. If there is some
2 violation associated with this, it doesn't
3 arise out of whether the complaint was
4 reasonable. It arises out of the response of
5 Mood to the complaint and ABRA's investigative
6 activity.
7 And so, I submit that this
8 testimony really is beside the point. What
9 we're really looking at is what the response
10 of Mood Lounge has been with the complaint
11 that was filed.
12 INTERIM CHAIRMAN ALBERTI: Mr.
13 Woodson, I'm going to allow this testimony.
14 If this is prior to the March letter, I will
15 allow it, because this whole process all
16 starts with notification to the Licensee. And
17 I think part of the Board's concern is is that
18 notification was justified. If it wasn't
19 justified, then there is nothing to cure. And
20 so, I think reasonableness, there has to be
21 reasonableness standards applied to that first
22 notice to the establishment. So I'm going to
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1 allow testimony leading up to that first
2 notice.
3 Is that understood, Ms. Phillips?
4 MS. PHILLIPS: I believe that what
5 I said was that it needed to be before May
6 17th --
7 INTERIM CHAIRMAN ALBERTI: No.
8 MS. PHILLIPS: -- and there was --
9 if -- listen to this argument and I will
10 say --
11 INTERIM CHAIRMAN ALBERTI: Okay.
12 MS. PHILLIPS: March 9th was the
13 first written notice.
14 INTERIM CHAIRMAN ALBERTI: Yes.
15 MS. PHILLIPS: The opportunity to
16 cure was April 9th. The first noise test that
17 ABRA was able to investigate was May 17th --
18 May 19th.
19 INTERIM CHAIRMAN ALBERTI: And
20 that's the incidence that brought us here
21 today?
22 MS. PHILLIPS: And that is the
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1 instance. So they'd already had a violation.
2 They had a violation as of April 9th if there
3 was no cure.
4 INTERIM CHAIRMAN ALBERTI: I don't
5 think, Ms. Phillips, we can hear testimony
6 about complaints and incidents that occurred
7 between the letter of notice and the report
8 that we're dealing with. I think they are
9 outside the scope of this hearing. So if
10 that's Mr. Woodson's objection, then I'm going
11 to sustain that part of the objection as I
12 understand it.
13 MS. PHILLIPS: Well, it is the --
14 those are even more important. The ones
15 between April 9th and when ABRA came out to do
16 the test to prove the violation and to try to
17 fix the violation from that standpoint is even
18 more important because the establishment under
19 the voluntary agreement is only given 30 days
20 to cure. And if the letter was March 9th,
21 April 9th or 10th would be the 30 days to
22 cure. And if there's no allowance to have
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1 even the briefest testimony that there were
2 subsequent noise violations after April 9th --
3 because that's what the violation is. That's
4 what got us here.
5 INTERIM CHAIRMAN ALBERTI: So
6 what's the purpose of talking -- of presenting
7 evidence on those alleged noise violations?
8 MS. PHILLIPS: Which ones?
9 INTERIM CHAIRMAN ALBERTI: The
10 ones prior to the May violation.
11 MS. PHILLIPS: The ones prior to
12 the March letter?
13 INTERIM CHAIRMAN ALBERTI: No,
14 prior to the May 17th.
15 MS. PHILLIPS: Because they
16 establish the violation. The complaints prior
17 to March 9th establish that the Complainants
18 were reasonable before they wrote a letter.
19 After March 9th they wrote a letter. They
20 complied with the voluntary agreement with
21 regard to notice requirements. As of April
22 9th there has been an opportunity, the 30-day
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1 opportunity to cure, or maybe it's April 10th.
2 I mean, I didn't count the actual days. But
3 they have 30 days. If there -- and what
4 arose --
5 INTERIM CHAIRMAN ALBERTI: In this
6 line of testimony will you present evidence
7 that the Licensee was made aware of a continue
8 problem?
9 MS. PHILLIPS: Yes.
10 MR. WOODSON: Mr. Alberti?
11 INTERIM CHAIRMAN ALBERTI: Okay.
12 Ms. Phillips, I'm going to allow this line of
13 questioning, but you understand that my
14 understanding from what you're representing is
15 that the purpose of this line of questioning
16 is to represent -- is to show that the
17 establishment was made aware that there was a
18 perception that there was an ongoing problem
19 from the residents?
20 MS. PHILLIPS: I --
21 INTERIM CHAIRMAN ALBERTI: And
22 that the Licensee was made aware of that?
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1 MS. PHILLIPS: Right.
2 INTERIM CHAIRMAN ALBERTI: Not
3 that they experienced it, but the Licensee was
4 made aware of it. And if that's what you're
5 going to show, then I will allow this line of
6 questioning.
7 MS. PHILLIPS: All right. I
8 will --
9 INTERIM CHAIRMAN ALBERTI: Because
10 we're talking about the ability to cure here
11 and take reasonable steps. So continue.
12 MS. PHILLIPS: Okay. I think I
13 understand what you're asking.
14 If you will turn to Exhibit A, tab
15 1, which would be the Exhibit 1 within the
16 first investigative report which the District
17 of Columbia has labeled A, is that an email
18 from you to ABRA?
19 MR. HINGORANEY: Yes, it is.
20 MS. PHILLIPS: Was it about noise
21 complaints?
22 MR. HINGORANEY: It was. It was
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1 about -- it was expressing the fact that we
2 had tried to work with the -- with Mood Lounge
3 to address these problems and that we were
4 having problems and we wanted to avail
5 ourselves of the ABRA process for filing a
6 complaint because cure had not been made by
7 that date, April 13th.
8 MS. PHILLIPS: And April 13th is
9 more than 30 days after your first written
10 complaint?
11 MR. HINGORANEY: That's correct.
12 MS. PHILLIPS: Were you or an
13 agent for your family a signator of the March
14 9th letter?
15 MR. HINGORANEY: Yes, my wife who
16 is the representative on the condominium board
17 association was a signator.
18 MR. WOODSON: Mr. Alberti, I have
19 to lodge an additional objection. This
20 testimony about what was a violation and what
21 is a cure and when was the cure to take place,
22 this is all actions of he said/she said.
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1 The reason ABRA did an
2 investigation was to make a finding. That's
3 what brought us to the Board today is ABRA's
4 investigative finding. This is just talk.
5 This is his word of what he considers a
6 violation to be. This could is -- this could
7 be -- he could pick a date. Why don't we pick
8 February 26th as a date? He could pick any
9 date. The point is not what he says as a
10 matter of record. It's what the finding is of
11 ABRA's investigative report. That is why
12 we're here.
13 And I object to this testimony.
14 It's speculative and it's prejudicial to the
15 record and to the ability of Mood Lounge to
16 adequately defend against that. This is just
17 some talk, and I object to it.
18 INTERIM CHAIRMAN ALBERTI: Okay.
19 Ms. Phillips?
20 MS. PHILLIPS: This is what they
21 call testimony under oath, which has always
22 been in my history of trying cases just talk
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1 under oath about the impressions of the
2 witnesses of what is happening that they're
3 complaining about in this case. I don't often
4 have these kinds of complaints in my past, but
5 that is one of the reasons why I wanted to
6 establish what he considered a violation.
7 I mean, if he considers a
8 violation a whisper of music in the condo that
9 he owns and has tenants in, then I want the
10 Board and anybody else to know that, because
11 perhaps a whisper of noise in his condominiums
12 with the windows shut and the doors shut is an
13 unreasonable complaint. And I want the Board
14 to know that these were reasonable complaints,
15 exactly what he's talking about, which I
16 believe you precluded me from answering if he
17 had witnessed any of the noise, what he called
18 the noise violations himself as opposed to
19 what his tenants told him.
20 INTERIM CHAIRMAN ALBERTI: But I
21 think what's more important here is what he
22 conveyed to -- what he can testify to what he
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1 conveyed to the Licensee.
2 MS. PHILLIPS: I think both are
3 important.
4 INTERIM CHAIRMAN ALBERTI: And I
5 think part of that --
6 MS. PHILLIPS: Because the whisper
7 of noise is --
8 INTERIM CHAIRMAN ALBERTI: -- is
9 the nature of what he perceived.
10 MS. PHILLIPS: Right.
11 INTERIM CHAIRMAN ALBERTI: And
12 then what he conveyed to the -- because
13 without the piece of what he conveyed to the
14 Licensee, then the Licensee can't be
15 responsible for something they didn't know.
16 And that's part of this case.
17 MS. PHILLIPS: Right. And
18 that's --
19 INTERIM CHAIRMAN ALBERTI: Were
20 they reasonably -- was there an expectation
21 that they had knowledge of an alleged problem
22 that they were to address, because that's
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1 really the implication of the VA.
2 MS. PHILLIPS: I think that -- I
3 believe you're saying the same thing I am,
4 because both -- it's twofold. It's that the
5 Complainants; and I've only brought two --
6 that the Complainants had a reasonable
7 expectation of what noise they should
8 experience with inside the confines of their
9 condominium. Was that reasonable? That's why
10 I brought up the whisper of noise.
11 INTERIM CHAIRMAN ALBERTI: Yes.
12 MS. PHILLIPS: We all know that we
13 can hear things that are very faint. And we
14 heard the testimony previously that Mr.
15 Danilovics only expected to be able to hear
16 his television above the noise at a reasonable
17 volume level. He didn't want to have to turn
18 his television up loudly. But that was his
19 reasonable expectation.
20 I believe that there needs to be
21 testimony from this witness, since he's an
22 owner, not a resident, that he witnessed noise
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1 or vibrations and what they were like, just
2 briefly, so that we know that he fielded to
3 the establishment, in whatever he fielded to
4 them, reasonable complaints as opposed to the
5 whisper of noise. And that's all I wanted to
6 ask him when I got the first objection to the
7 first question. I think it's twofold.
8 INTERIM CHAIRMAN ALBERTI: Where
9 is that leading now? Where is that leading to
10 with this witness?
11 MS. PHILLIPS: This witness --
12 INTERIM CHAIRMAN ALBERTI: That's
13 the first -- you said it's twofold. So that's
14 one. Where is the second step? Where is it
15 leading to, the second step?
16 MS. PHILLIPS: It's leading to the
17 fact that there were reasonable complaints of
18 an unreasonable level of noise --
19 INTERIM CHAIRMAN ALBERTI: By
20 this --
21 MS. PHILLIPS: -- by this
22 Complainant to --
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1 INTERIM CHAIRMAN ALBERTI: Okay.
2 MS. PHILLIPS: -- the
3 establishment.
4 INTERIM CHAIRMAN ALBERTI: I'm
5 going to overrule the objection. Please
6 proceed, Ms. Phillips.
7 MS. PHILLIPS: All right. So I'm
8 going to start with the first prong of this
9 test I provided.
10 Were you ever a witness to noise
11 violations that exceeded the whisper of noise
12 or commonplace discussions in the condominium
13 unit you own, which I believe is unit 4?
14 MR. HINGORANEY: Unit 3.
15 MS. PHILLIPS: Sorry, unit 3.
16 MR. HINGORANEY: Yes, I have.
17 I've -- on a number of occasions; a number,
18 but more than a couple occasions, been to the
19 unit when our tenant was complaining and heard
20 what can only be characterized as loud
21 thumping noises. The wall was vibrating and
22 on one occasion the light fixtures were
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1 humming because the noise was so loud.
2 And throughout this process we've
3 been very clear that we recognize we live in
4 a city and the tenants live in a city and they
5 understood that some level of noise is
6 acceptable, but these levels were just above
7 and beyond.
8 MS. PHILLIPS: And with regard to
9 the vibration was anything else vibrating
10 besides the light fixtures?
11 MR. HINGORANEY: The dresser that
12 Michael the tenant -- our first of tenants had
13 against the wall was also vibrating.
14 MS. PHILLIPS: Okay. And you said
15 your first set of tenants. Was there a
16 particular reason why you lost that particular
17 tenant?
18 MR. HINGORANEY: Those tenants who
19 had been with us for a year left because they
20 couldn't take the noise any longer.
21 MR. WOODSON: I object to that,
22 Mr. Alberti. I object to that. This witness
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1 is testifying -- I have been reasonably
2 patient about even objecting to his being able
3 to testify at all because he is not even a
4 resident that would be subject to this
5 problem. We haven't even had his tenants come
6 forward with this. But now he's going to make
7 -- compound this circumstance even more by
8 saying, well, I lost a tenant and then I lost
9 another tenant. Yes, this witness is
10 testifying under oath, but I submit that that
11 kind of testimony is not probative or reliable
12 to the issues at hand.
13 INTERIM CHAIRMAN ALBERTI: Ms.
14 Phillips?
15 MS. PHILLIPS: Hearsay is
16 allowable in this forum, and I believe a
17 single statement that a condominium owner says
18 that his tenant -- who he personally witnessed
19 the level of noise inside that condominium, as
20 he has just testified, was told that because
21 the level of noise was the same as he
22 testified that he heard personally was the
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1 reason that that tenant left. I think that's
2 an important fact and we're not going beyond
3 that.
4 INTERIM CHAIRMAN ALBERTI: Well,
5 Ms. Phillips, the problem I'm having with your
6 question was you sort of asked for his opinion
7 as to why his tenant left. You didn't ask
8 what his tenant told him.
9 MS. PHILLIPS: I can cure that.
10 INTERIM CHAIRMAN ALBERTI: And so
11 I can't that question because you're asking
12 for his opinion. So I'll sustain the
13 objection.
14 MS. PHILLIPS: Did you tenant tell
15 you why he or she left?
16 MR. HINGORANEY: He told me that
17 the noise was too loud for him and his wife
18 and he wanted to -- he couldn't stand it any
19 longer and he wanted to leave.
20 MS. PHILLIPS: If you would turn
21 to; I think I already had you turn to this
22 section, A-3.
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1 Did you find it, sir?
2 MR. HINGORANEY: Yes.
3 MS. PHILLIPS: And is this your
4 email?
5 MR. HINGORANEY: It is, yes.
6 MS. PHILLIPS: And what is the
7 date?
8 MR. HINGORANEY: That is March
9 9th, 2011.
10 MS. PHILLIPS: And what is the
11 subject?
12 MR. HINGORANEY: The subject is a
13 letter that I had attached to this email that
14 I was sending on behalf of the four owners of
15 the condos in the NINE condominium building --
16 MS. PHILLIPS: And --
17 MR. HINGORANEY: -- to -- sorry --
18 to the owner and the manager of Mood Lounge
19 that states that while we are pleased with
20 your willingness to work with us on a solution
21 with which we were pleased, we're concerned
22 with the lack of progress. Because we'd been
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1 working with them for a period of almost two
2 months, actually six weeks, and we wanted to
3 express our desire to come to a solution, but
4 let them know that the problem was in
5 existence.
6 MS. PHILLIPS: Now these email
7 addresses are [email protected] and
8 [email protected] and --
9 MR. HINGORANEY: I had --
10 MS. PHILLIPS: -- looks another of
11 the same one at the beginning.
12 MR. HINGORANEY: Yes. Well, the
13 second one -- the third one was incorrect. I
14 added it just in case because I had it written
15 down two different ways.
16 MS. PHILLIPS: I see.
17 MR. HINGORANEY: But the first one
18 is I believe the one that went through. The
19 other one bounced.
20 MS. PHILLIPS: Okay. And attached
21 to it was the March 9th letter that your
22 spouse was a signatory to and that Mr.
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1 Danilovics and others?
2 MR. HINGORANEY: That's correct,
3 yes.
4 MS. PHILLIPS: And that was the
5 first official written notice to the
6 establishment. Is that fair?
7 MR. HINGORANEY: That's fair.
8 MS. PHILLIPS: Now can you turn to
9 C? Without talking about the content, will
10 you tell me what this document is?
11 MR. HINGORANEY: This is basically
12 a record of interaction that I kept between
13 myself and our tenants and Mood Lounge.
14 Documents a -- from the very first day that
15 they were open, interaction that we had to
16 come to an agreement about noise that was
17 entering our condominium unit in an
18 unreasonable way. We were very open with Mood
19 management. We worked very closely with them.
20 We were very reasonable with, you know, them
21 just opening up and having to figure out their
22 sound system and figure out how best to reduce
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1 noise. So it looks -- it was dozens of
2 interactions over a period of about two to
3 three months where we went back and forth
4 asking them to turn the noise down, proffer
5 any solutions that we felt were reasonable,
6 and each time not making any progress and
7 having to deal with the noise and complaints
8 from our tenant.
9 MR. WOODSON: Mr. Alberti, I
10 object to this document. First of all, my
11 objection is several-fold. One is this is
12 just what I thought was happening, and have
13 said so repeatedly. We now have a witness who
14 is seeking to enter into evidence
15 circumstances and moments as proof of the
16 truth of them, which is his log of activity.
17 That's his log. Not only that, but there are
18 even entries in the log which reveal Mood
19 Lounge's effort -- assuming this is all true,
20 Mood Lounge's effort to respond to these
21 things.
22 Now, first I object to this
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1 witness entering this material as any evidence
2 of anything which deals with the issues at
3 hand. The Government's effort to create this
4 reasonableness umbrella has now stretched back
5 to January 22nd. Now, I think it's -- I
6 believe that this is far beyond this zone of
7 reasonableness that the Government is seeking
8 to establish as why the complaint came to
9 ABRA. It's far beyond that. That's one.
10 And the other is if there was
11 anything that is not probative of the events
12 taking place, it is a document created by this
13 witness for this witness. I might have a
14 document like that myself which would show
15 from February -- I could pull that out and say
16 that my document says that none of things that
17 happened in his document were true.
18 INTERIM CHAIRMAN ALBERTI: All
19 right.
20 MR. WOODSON: You know, Ms.
21 Phillips describes hearsay as being permissive
22 in administrative proceedings. And, yes,
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1 that's true, except that hearsay which is not
2 reliable, probative or substantial is not
3 permitted into evidence. I say to you that
4 this material is not probative of anything.
5 If we can get back to the circumstances that
6 brought us before you today with these two
7 investigative reports, I think we're there.
8 INTERIM CHAIRMAN ALBERTI: Okay.
9 Ms. Phillips?
10 MS. PHILLIPS: This is exactly
11 what I said that I was going to set out to
12 show, that there were reasonable efforts prior
13 to the March 9th official written notice which
14 complies with the voluntary agreement, Section
15 15, or 14, or whatever it is, one of the
16 latter sections. And, it also demonstrates
17 after that time April issues, which is
18 something else that we were allowed to
19 discuss, because that was after the period of
20 cure when there were still problems. And then
21 it ends on May 19th when Mr. Shakoor conducted
22 the real time sound test. And so it shows the
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1 reasonableness.
2 And one of the things about
3 documents, which I have yet to get out, is
4 that it shows what he would testify to. But
5 for me to draw this out of him, you know, to
6 get the milieu I want to set would take hours.
7 And so, there's a few more questions I'd like
8 to ask him about it to show you that it does
9 what I said it would do without requiring him
10 to testify about every single event.
11 INTERIM CHAIRMAN ALBERTI: Thank
12 you, Ms. Phillips.
13 MR. WOODSON: Mr. Chairman, this
14 is redundant in the extreme. If the
15 Government is seeking to establish
16 reasonableness, the reasonableness of the
17 conduct of the Complainants in this, then this
18 is an establishment -- this is establish it
19 here, establish it here, establish it here,
20 establish it here. It's redundant. And if
21 this witness has anything really to add to the
22 discussion about what is the subject of the
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1 hearing today, I have yet to hear that. I
2 object to this testimony. I object to this
3 document.
4 INTERIM CHAIRMAN ALBERTI: Thank
5 you, Mr. Woodson. The objection is overruled.
6 Continue, Ms. Phillips.
7 MS. PHILLIPS: One of the
8 precatory questions that I wished to ask you
9 was is this a contemporaneous-to-the-event
10 document? Did you create it at certain
11 periods of time or did you prepare it for this
12 hearing?
13 MR. HINGORANEY: I prepared most
14 of it until about the first week in April
15 several months ago just to keep track of what
16 all the interactions were done. I had kept
17 notes and then I typed it up sometime in the
18 spring, early summer. And then I updated it
19 this summer and fall with more interactions
20 from late April and May.
21 MS. PHILLIPS: And did you end it
22 at my request on May 19th?
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1 MR. HINGORANEY: Yes.
2 MS. PHILLIPS: And did you add at
3 my request Vs and Ws?
4 MR. HINGORANEY: Yes, I did.
5 MS. PHILLIPS: And what did those
6 Vs and Ws mean?
7 MR. HINGORANEY: The V indicated a
8 verbal interaction with Mood Lounge
9 management, and the W indicated a written
10 interaction, text or email with Mood Lounge
11 management.
12 MS. PHILLIPS: And contained
13 within this document that I have labeled on
14 behalf of the District as Exhibit C, does
15 there contain dates and times and things where
16 the establishment did make some progress and
17 did do what you had discussed and the outcome
18 was favorable on the establishment's part?
19 MR. HINGORANEY: Can you -- I'm
20 sorry, the question again?
21 MS. PHILLIPS: Did the
22 establishment do some good things in this
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1 document that you recorded?
2 MR. HINGORANEY: They did, yes.
3 MS. PHILLIPS: And did they do
4 some what you would call bad things, since I'm
5 using good and bad, that you also recorded?
6 MR. HINGORANEY: That's right,
7 yes.
8 MS. PHILLIPS: And so from your
9 estimation as a Complainant did you try to
10 show the whole picture from your perspective?
11 MR. HINGORANEY: Absolutely.
12 MS. PHILLIPS: After the official
13 notice on March 9th and after the 30 days
14 which the establishment in the voluntary
15 agreement allows them to cure it, were there
16 noise complaints of the level that we have
17 discussed, the vibrating, can't-hear-over-the-
18 TV-type noise complaints documented in this
19 Exhibit C?
20 MR. HINGORANEY: Yes, there were.
21 MS. PHILLIPS: And were they
22 communicated, all of them, or most of them, or
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1 some of them communicated to the
2 establishment? And if they were, is that
3 noted in this document?
4 MR. HINGORANEY: Yes, most, if not
5 all of them, were communicated and they are
6 noted in the document.
7 MS. PHILLIPS: Okay. Did you
8 participate in the sound test on May 19th?
9 MR. HINGORANEY: Yes, I did.
10 MS. PHILLIPS: Where were you when
11 the sound test was conducted?
12 MR. HINGORANEY: I was in the
13 bedroom of the condo unit.
14 MS. PHILLIPS: Is the bedroom of
15 the condo unit, which is unit 3 --
16 MR. HINGORANEY: Three. Yes.
17 MS. PHILLIPS: -- is that where
18 there is a meeting of the wall between your
19 establishment and Mood?
20 MR. HINGORANEY: That's correct,
21 it's a shared wall in that bedroom.
22 MS. PHILLIPS: Okay. And were you
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1 on the telephone?
2 MR. HINGORANEY: I was, yes.
3 MS. PHILLIPS: All right. And who
4 was at the other end?
5 MR. HINGORANEY: I'm sorry, we
6 were texting.
7 MS. PHILLIPS: Texting? Isn't
8 that on the telephone?
9 MR. HINGORANEY: It is, yes, but
10 they're on the other end.
11 MS. PHILLIPS: Okay. Okay. I
12 see. But who were you texting to?
13 MR. HINGORANEY: I was texting to
14 -- I believe I was texting to Inspector
15 Shakoor.
16 MS. PHILLIPS: Okay. Did you get
17 responses that let you know that to your
18 texts?
19 MR. HINGORANEY: Yes.
20 MS. PHILLIPS: What was the
21 subject --
22 MR. WOODSON: Mr. Alberti. Mr.
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1 Alberti, excuse my -- I beg you for this
2 interruption and objection. The witness is
3 now going to testify about text messages he
4 got from a circumstance where he wasn't
5 present. Is that what I understood him to
6 say?
7 MS. PHILLIPS: I'm sorry, do you
8 need for me to respond, or what do you need
9 from me?
10 INTERIM CHAIRMAN ALBERTI:
11 Listen --
12 MR. WOODSON: Am I --
13 INTERIM CHAIRMAN ALBERTI: -- my
14 understanding is that they are text messages
15 in a back and forth communication happening --
16 he's talking about an event that was ongoing
17 at the time.
18 MR. WOODSON: Okay.
19 INTERIM CHAIRMAN ALBERTI: But
20 it's in the moment. I mean, and he's
21 communicating with the investigator. There's
22 a back and forth of text messages.
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1 MR. WOODSON: All right.
2 INTERIM CHAIRMAN ALBERTI: And
3 that's what he's testifying to.
4 MR. WOODSON: I withdraw the
5 objection.
6 INTERIM CHAIRMAN ALBERTI: Okay.
7 Thank you.
8 MS. PHILLIPS: And I got out that
9 you were in the condo.
10 MR. HINGORANEY: I was in the
11 condo.
12 MS. PHILLIPS: In the NINE?
13 MR. HINGORANEY: Yes.
14 MS. PHILLIPS: All right. And did
15 you establish through those texts that there
16 was a certain level of noise that was
17 acceptable but audible within the condo while
18 Investigator Shakoor was apparently in Mood
19 testing things?
20 MR. HINGORANEY: Yes, we went back
21 and forth over different sound levels and came
22 to a sound level that I thought was audible
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1 but not unreasonably loud, and I texted back
2 and said this is an acceptable sound level.
3 MS. PHILLIPS: All right. And did
4 you happen to recall how long that interaction
5 took place?
6 MR. HINGORANEY: I would say it
7 took 15 to 20 minutes.
8 MS. PHILLIPS: And an acceptable
9 level was reached for noise in the condo?
10 MR. HINGORANEY: That's correct.
11 MS. PHILLIPS: And it wasn't
12 complete silence?
13 MR. HINGORANEY: No, it was not.
14 You could still hear it. You could still feel
15 the thump of the bass a little bit, but it was
16 something -- I mean, and we recognize we're --
17 we have neighbors. We all have to get along.
18 But it was a level that I think people could
19 deal with and could not be overly disturbed
20 by.
21 MS. PHILLIPS: From your personal
22 knowledge; and if you don't have any personal
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1 knowledge, did that fix last?
2 MR. HINGORANEY: It did not, no.
3 MS. PHILLIPS: How long did it
4 last?
5 MR. HINGORANEY: It lasted -- we
6 got complaints from our new tenants
7 approximately three weeks later. And the two
8 weeks after that test, or the 10 days after
9 that test the unit was vacant because our new
10 tenants were coming in at the beginning of
11 June.
12 MS. PHILLIPS: I would like to
13 move for the admission of Exhibit A-1, Exhibit
14 A-3, the first page because the second page
15 has already been admitted.
16 INTERIM CHAIRMAN ALBERTI: Yes.
17 MS. PHILLIPS: And Exhibit C.
18 INTERIM CHAIRMAN ALBERTI: Mr.
19 Woodson?
20 MR. WOODSON: Yes, Mr. Alberti, we
21 object to Exhibit C with particular attention
22 to any date for entries beyond -- withdraw the
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1 objection. We do not object.
2 INTERIM CHAIRMAN ALBERTI: Okay.
3 Thank you. We will accept that into evidence,
4 Ms. Phillips.
5 MS. PHILLIPS: Thank you very
6 much, Mr. Chair. That concludes my questions
7 for this witness.
8 INTERIM CHAIRMAN ALBERTI: Okay.
9 Mr. Higoraney?
10 MR. HINGORANEY: Hingoraney.
11 INTERIM CHAIRMAN ALBERTI: You may
12 -- wait, wait. Are there any Board questions?
13 I'm sorry. Well, actually, Mr. -- this is a
14 long day. I'm sorry.
15 MR. WOODSON: I realize I've
16 descended to a potted plant here.
17 INTERIM CHAIRMAN ALBERTI: Ms.
18 Gordon, do you have any questions for the
19 witness? Excuse me.
20 MR. WOODSON: Yes. You've noted
21 in your testimony that there have been -- that
22 there were steps taken by Mood Lounge prior to
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1 the test in May to come to a reasonable
2 circumstance around music in the
3 establishment?
4 MR. HINGORANEY: Yes.
5 MR. WOODSON: Yes, that is true.
6 Did you have occasion to do that more than
7 once?
8 MR. HINGORANEY: Yes.
9 MR. WOODSON: And each time was
10 Mood Lounge responsive?
11 MS. PHILLIPS: I'm going to object
12 to the form of that question because I'm not
13 sure --
14 MR. WOODSON: Did Mood Lounge
15 respond to the complaint that you had?
16 MR. HINGORANEY: Yes, it took
17 sometimes --
18 INTERIM CHAIRMAN ALBERTI: Well,
19 wait, wait. I think there's an objection here
20 and I'm not sure we really changed the
21 question.
22 MS. PHILLIPS: We didn't change
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1 the question. I didn't finish my objection
2 either.
3 INTERIM CHAIRMAN ALBERTI: Yes,
4 please finish your objection. I'm sorry. Mr.
5 Woodson, you really didn't change the
6 question. You sort of added to it, so I think
7 there's an objection here.
8 MS. PHILLIPS: Right.
9 INTERIM CHAIRMAN ALBERTI: Ms.
10 Phillips?
11 MS. PHILLIPS: There has been
12 testimony with regard to Exhibit C that there
13 were times when there were complaints and Mood
14 Lounge was not responsive. And there were
15 times when there were complaints and Mood
16 Lounge was responsive. And there were times
17 when Mood Lounge was responsive that there was
18 a cure but it didn't last. And so when Mr.
19 Woodson asks a general question like were they
20 always responsive, I'm not sure given this
21 document there can be a yes/no answer because
22 there's clear evidence and testimony that
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1 sometimes they were not responsive to
2 complaints. You see what I'm saying? So --
3 INTERIM CHAIRMAN ALBERTI: I
4 understand what you're saying.
5 MS. PHILLIPS: It's difficult.
6 MR. WOODSON: Yes, that's not the
7 question I asked. I asked the witness were
8 there occasions when Mood Lounge was
9 responsive to the complaints issued? His
10 answer was yes.
11 INTERIM CHAIRMAN ALBERTI: Okay.
12 So that is the question?
13 MR. HINGORANEY: By "responsive"
14 do you mean --
15 INTERIM CHAIRMAN ALBERTI: Wait,
16 wait, wait, wait. So you believe that that
17 was the answer to his question, is that
18 correct?
19 MR. WOODSON: I'm sorry?
20 INTERIM CHAIRMAN ALBERTI: The
21 question again -- okay.
22 MR. WOODSON: Why don't I start
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1 again?
2 INTERIM CHAIRMAN ALBERTI: The
3 question again? Repeat the question that you
4 just recited to me?
5 MR. WOODSON: My question was were
6 there occasions when a complaint was issued
7 and Mood Lounge was responsive?
8 INTERIM CHAIRMAN ALBERTI: Okay.
9 That is the question before you, Mr.
10 Hingoraney --
11 MR. HINGORANEY: Well, and I'd ask
12 you to --
13 INTERIM CHAIRMAN ALBERTI: -- and
14 I allow that question.
15 MR. HINGORANEY: I'd ask you to
16 clarify.
17 INTERIM CHAIRMAN ALBERTI: Ms.
18 Phillips, you want to respond to that
19 before --
20 MS. PHILLIPS: No, I don't,
21 because -- I don't because --
22 INTERIM CHAIRMAN ALBERTI: Okay.
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1 That's the question. Mr. Hingoraney?
2 MR. HINGORANEY: I would just ask
3 for a clarification on what "response" means.
4 Was it a -- did they call me back, or did they
5 cure? A response to a complaint to me is you
6 fix the problem. A response to somebody else
7 could mean that you call me back or email me
8 back or text me back. So if you can clarify,
9 that would be helpful.
10 MR. WOODSON: Well, actually in
11 the four corners of the voluntary agreement it
12 could be all of the above. Simply responding
13 to you is in fact a responsiveness under the
14 voluntary agreement. That's one kind of
15 response. Another type of response is we
16 contact you back and we take steps to resolve
17 the underlying problem that you had. That's
18 another kind.
19 Were either or both of them -- did
20 either or both of those circumstances take
21 place?
22 MR. HINGORANEY: On some occasions
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1 were noted, yes.
2 MR. WOODSON: On some occasions
3 were noted? Shall we say for example on March
4 22nd?
5 MR. HINGORANEY: So your question
6 is? Can you repeat your question? I'm sorry.
7 MR. WOODSON: Was the entry that
8 you've noted on March 22nd a responsiveness
9 within either a simple return of a
10 communication or steps being taken?
11 MR. HINGORANEY: Yes.
12 MR. WOODSON: Okay. What about on
13 February 15th?
14 MR. HINGORANEY: Yes.
15 MR. WOODSON: I don't have any
16 further questions.
17 INTERIM CHAIRMAN ALBERTI: Thank
18 you, Mr. Woodson.
19 Questions from the Board?
20 (No audible response.)
21 INTERIM CHAIRMAN ALBERTI: No
22 questions from the Board.
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1 Ms. Phillips, any redirect?
2 MS. PHILLIPS: I just want to make
3 sure that all the exhibits that I asked to
4 have admitted for this witness were admitted,
5 over objection, if there was an objection.
6 I'm speaking mainly of C.
7 INTERIM CHAIRMAN ALBERTI: I
8 believe the objection was withdrawn, so, yes,
9 they are.
10 MS. PHILLIPS: Okay. Thank you.
11 INTERIM CHAIRMAN ALBERTI: They
12 are admitted, yes.
13 MS. PHILLIPS: I needed to make
14 sure before the record was closed.
15 INTERIM CHAIRMAN ALBERTI: Yes.
16 MS. PHILLIPS: I have no further
17 questions on redirect of this witness.
18 INTERIM CHAIRMAN ALBERTI: Okay.
19 Then, Mr. Hingoraney, you may step down.
20 If there are no additional
21 questions, there is no opportunity for
22 recross.
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1 MR. WOODSON: Yes.
2 INTERIM CHAIRMAN ALBERTI: Okay.
3 Well, you're looking at me like --
4 MR. WOODSON: No, I was actually
5 going to lodge an objection and ask to strike
6 testimony, but the better of me caught my --
7 INTERIM CHAIRMAN ALBERTI: Okay.
8 That's fine.
9 Ms. Phillips, your next witness?
10 MS. PHILLIPS: I would to call on
11 behalf of the District of Columbia
12 Investigator Shakoor.
13 INTERIM CHAIRMAN ALBERTI:
14 Investigator, would you please approach the
15 witness stand? Raise your right hand, please.
16 Thank you. Investigator, do you solemnly
17 affirm that the testimony you're about to give
18 will be the truth, the whole truth and nothing
19 but the truth?
20 INVESTIGATOR SHAKOOR: I do.
21 INTERIM CHAIRMAN ALBERTI: Thank
22 you. Please be seated.
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1 MS. PHILLIPS: Mr. Shakoor, will
2 you state your name and spell it for the
3 record, please?
4 INVESTIGATOR SHAKOOR: ABRA
5 Investigator Jabriel Shakoor. It's J-A-B-R-I-
6 E-L. Last name, S-H-A-K-O-O-R.
7 MS. PHILLIPS: And you took care
8 of my next question, so at a certain point in
9 time were you contacted by someone within ABRA
10 to conduct an investigation with regard to
11 complaints from the condominium NINE and the
12 Mood Lounge?
13 INVESTIGATOR SHAKOOR: I was.
14 MS. PHILLIPS: And at what point
15 in time do you recall; and there's a book of
16 exhibits if you need to refresh your
17 recollection for dates, that you were
18 contacted to conduct an investigation?
19 INVESTIGATOR SHAKOOR: I believe
20 the date was Wednesday, April 13th, 2011.
21 MS. PHILLIPS: And did you conduct
22 an investigation?
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1 INVESTIGATOR SHAKOOR: Yes, I did.
2 MS. PHILLIPS: And at the end of
3 your investigation did you take your findings
4 and reduce them to, in this case, two reports?
5 INVESTIGATOR SHAKOOR: That's
6 correct, yes.
7 MS. PHILLIPS: And in the exhibit
8 manual do you see under tab A and under tab B
9 the two reports with attached exhibits that
10 you wrote?
11 INVESTIGATOR SHAKOOR: Yes, I do.
12 MS. PHILLIPS: And I don't know
13 whether the copies in there have your
14 signature, but would you normally have -- oh,
15 yes. Would you look at the last page of your
16 investigative report and see if your
17 signatures are there?
18 INVESTIGATOR SHAKOOR: Yes, it is.
19 MS. PHILLIPS: And the date of
20 your signature on tab A, which would be the
21 first report as I look at it, what date is
22 that?
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1 INVESTIGATOR SHAKOOR: May 23rd,
2 2011.
3 MS. PHILLIPS: And under tab B is
4 there a signature that's yours and what is the
5 date that you signed it?
6 INVESTIGATOR SHAKOOR: June 14th,
7 2011.
8 MS. PHILLIPS: Thank you. In the
9 process of your investigation did you -- was
10 it for a noise complaint?
11 INVESTIGATOR SHAKOOR: Yes, it
12 was.
13 MS. PHILLIPS: And it was reduced
14 to a single noise complaint for this
15 particular notice, is that fair?
16 INVESTIGATOR SHAKOOR: That's
17 correct.
18 MS. PHILLIPS: Did you conduct an
19 investigation with regard to the noise
20 complaints? And if so, when did you start?
21 INVESTIGATOR SHAKOOR: I began my
22 investigation on Thursday, April 14th, 2011.
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1 MS. PHILLIPS: And what did you do
2 in that part of your investigation?
3 INVESTIGATOR SHAKOOR: I began by
4 contacting the Complainants. In this case it
5 was Rishi Hingoraney and George Danilovics.
6 MS. PHILLIPS: And what did you
7 learn from discussing with the Complainants?
8 INVESTIGATOR SHAKOOR: That they
9 were having disturbances coming from Mood
10 Lounge into their residence.
11 MS. PHILLIPS: And after you
12 talked to them did you -- what did you do
13 further?
14 INVESTIGATOR SHAKOOR: I set up a
15 time with them to visit their residence and
16 verify their complaints.
17 MS. PHILLIPS: Okay. And did you
18 look at whether or not this -- any noise
19 complaint was a violation of a D.C. Code
20 section as opposed to a voluntary agreement?
21 INVESTIGATOR SHAKOOR: That's
22 correct. I referenced the D.C. Office of
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1 Zoning and I was able to determine that the
2 Complainants -- they live at 1316 Naylor
3 Court, which is located in a Class C-2-A
4 Commercial Zone. And according to D.C.
5 Official Code 25-725, it would not be a
6 violation of the D.C. Code.
7 MS. PHILLIPS: Right. And so at
8 some point in time did you learn that there
9 was a voluntary agreement which governed this
10 matter?
11 INVESTIGATOR SHAKOOR: That's
12 correct.
13 MS. PHILLIPS: And from your
14 perspective, reading it as an investigator,
15 did that temper your investigation?
16 INVESTIGATOR SHAKOOR: Under
17 Section 6 of the voluntary agreement, under
18 the second sentence, I believe it says
19 Applicant will also take all necessary steps
20 to ensure that music, noise and vibrations are
21 not disruptive to the adjacent residential
22 property occupants' reasonable use of outdoor
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1 areas of this property. That was where we had
2 to determine that the noise heard inside the
3 residents would be in violation.
4 MS. PHILLIPS: Did you also notice
5 that there were additional sections of the
6 voluntary agreement that dealt with notice and
7 requirement for a time to cure before they
8 contacted; i.e., the Complainants contacted
9 ABRA?
10 INVESTIGATOR SHAKOOR: That's
11 correct.
12 MS. PHILLIPS: And would you
13 reference that in brief, please?
14 INVESTIGATOR SHAKOOR: I believe
15 it was under Section 16. The establishment
16 has to be given the opportunity to cure such
17 a violation within 30 days after the Applicant
18 has -- after the Complainant has notified them
19 of the violation.
20 MS. PHILLIPS: And at the start of
21 your investigation when you first received the
22 complaint on I believe you said April 13th,
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1 but the record will correct me if I'm
2 incorrect, did you determine that the
3 establishment had complied with the notice
4 requirements of the voluntary agreement?
5 INVESTIGATOR SHAKOOR: That's
6 correct. The Complainant did comply with
7 that.
8 MS. PHILLIPS: All right. As I
9 look at Section 11; it's called "Security,"
10 the paragraphs on page 4 at the top, did you
11 ever investigate whether the Applicant -- and
12 the Applicant in this case would be the
13 establishment, is that correct?
14 INVESTIGATOR SHAKOOR: Yes.
15 MS. PHILLIPS: Did you ever
16 determine whether or not the Applicant
17 maintained a telephone number to take
18 complaints as required on page 4, the second
19 part of this Section 11, "Security?"
20 INVESTIGATOR SHAKOOR: From my
21 understanding, the owners and management on
22 staff, their cell phone numbers were readily
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1 available and their email addresses also.
2 MS. PHILLIPS: Okay. And so, did
3 you attach the voluntary agreement to Exhibit
4 A, your first investigative report?
5 INVESTIGATOR SHAKOOR: I believe
6 so.
7 MS. PHILLIPS: And I believe it is
8 tab 3, Exhibit -- no, tab 4, Exhibit 4. Is
9 that correct?
10 INVESTIGATOR SHAKOOR: That's
11 correct.
12 MS. PHILLIPS: All right. And
13 it's attached in its entirety?
14 INVESTIGATOR SHAKOOR: That's
15 correct.
16 MS. PHILLIPS: Okay. Was that
17 voluntary agreement made with Mood Lounge?
18 INVESTIGATOR SHAKOOR: It was made
19 with the previous establishment, Be Bar, Wami,
20 LLC
21 MS. PHILLIPS: Okay. And is it
22 your understanding as an investigator that the
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1 voluntary agreement traveled with the
2 establishment, not with the owner?
3 INVESTIGATOR SHAKOOR: That's
4 correct.
5 MS. PHILLIPS: Okay. So this
6 voluntary agreement would be in effect for
7 Mood Lounge?
8 INVESTIGATOR SHAKOOR: That's
9 correct.
10 MS. PHILLIPS: All right. What
11 did you do after you determined that this
12 noise violation did not comply with the four
13 corners of D.C. Official Code Section 25-725?
14 INVESTIGATOR SHAKOOR: We still
15 proceeded because it would be a violation of
16 the voluntary agreement. I again verified
17 that the noise was audible inside the
18 complainants' residence. On that night I
19 contacted the owner, Ms. Beyene and I
20 explained to her that I was able to hear noise
21 inside of the complainants' residence. We
22 reviewed the voluntary agreement and I
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1 notified her of the violation.
2 MS. PHILLIPS: Now, when was that?
3 INVESTIGATOR SHAKOOR: That was
4 on --
5 MS. PHILLIPS: That's tab A, page
6 2, I believe. Is that correct?
7 INVESTIGATOR SHAKOOR: Sunday, May
8 15th.
9 MS. PHILLIPS: All right. And
10 that's at what time?
11 INVESTIGATOR SHAKOOR: 12:30 a.m.,
12 about.
13 MS. PHILLIPS: Okay. That's after
14 midnight, right?
15 INVESTIGATOR SHAKOOR: Correct.
16 MS. PHILLIPS: All right. And you
17 visited Mr. Hingoraney's apartment?
18 INVESTIGATOR SHAKOOR: That's
19 correct.
20 MS. PHILLIPS: Did you visit any
21 other condos?
22 INVESTIGATOR SHAKOOR: On that
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1 night, no.
2 MS. PHILLIPS: Okay. Was Mr.
3 Hingoraney present when you visited the
4 establishment at that point?
5 INVESTIGATOR SHAKOOR: Yes, he
6 was. He was the one that gave -- opened the
7 door and gave me access to it. He was there
8 with me.
9 MS. PHILLIPS: Right. And when
10 you say "audible," it was "audible," what do
11 you mean by "audible?" Was it a whisper
12 sound? Was it loud? Were you able to make a
13 determination based on your investigative
14 experience as to the level?
15 INVESTIGATOR SHAKOOR: I believe
16 on that night -- it's been some time. I
17 believe the bass was the biggest issue on that
18 night. I don't believe we could hear voices
19 per se, but it was mostly the bass that we
20 could clearly hear inside of the bedroom.
21 MS. PHILLIPS: All right. And did
22 you make any determination as suggested in the
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1 voluntary agreement about vibration? On page
2 2 it talks about vibrations.
3 INVESTIGATOR SHAKOOR: Be a little
4 more specific, please.
5 MS. PHILLIPS: On page 2 of the
6 voluntary agreement, Section 6, I believe it
7 was the sentence that you read. It talks
8 about music, noise and vibration. So you said
9 there was noise and it was bass, so I assume
10 that's music?
11 INVESTIGATOR SHAKOOR: That would
12 be music, yes, and the bass is -- does provide
13 some vibration.
14 MS. PHILLIPS: Right. Could you
15 see visible signs that the walls were
16 vibrating or pictures were vibrating or the
17 light fixtures were vibrating?
18 INVESTIGATOR SHAKOOR: I don't
19 believe on that night, no.
20 MS. PHILLIPS: Okay. All right.
21 Well, what did you do next?
22 INVESTIGATOR SHAKOOR: Like I
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1 said, we -- I proceeded to the establishment
2 and I spoke with the owner, Ms. Beyene. I
3 notified her that I just met with the
4 Complainant and I was able to verify that
5 noise could be heard. I notified her of the
6 voluntary agreement and what it says in there.
7 And I notified her of the violation.
8 MS. PHILLIPS: And what did she
9 tell you, which is included in your report?
10 INVESTIGATOR SHAKOOR: She was
11 very concerned and she would do what was
12 necessary to comply.
13 MS. PHILLIPS: Right. Did she
14 talk about actual changes to the establishment
15 that she made with regard to this?
16 INVESTIGATOR SHAKOOR: I believe
17 she said that she had purchased a new sound
18 limiter. And some soundproofing was
19 installed, I believe.
20 MS. PHILLIPS: Right. I'm looking
21 at the last paragraph of your report before
22 the exhibits are listed. Do you know whether
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1 that was installed at the time you were there
2 at the establishment on May 15th?
3 INVESTIGATOR SHAKOOR: That was
4 her statements, not anything I witnessed.
5 MS. PHILLIPS: Okay. All right.
6 And I take it that you attached five exhibits.
7 We've had testimony on several from the actual
8 propounders of those exhibits. Exhibit 2,
9 just describe in brief what that is. 2A.
10 INVESTIGATOR SHAKOOR: Exhibit 2
11 is a printout. It's a map generated by the
12 D.C. Office of Zoning. It just shows the
13 footprint of the area where the buildings are
14 located and which zone they're located in.
15 MS. PHILLIPS: And was it this
16 device that you used when making your
17 determination that this was not a violation of
18 the D.C. Code 25-725?
19 INVESTIGATOR SHAKOOR: That's
20 correct. This is the location of the
21 residents which puts them in a C-2-A Zone.
22 MS. PHILLIPS: Right. And did you
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1 also conduct a regulatory inspection on that
2 date, and Exhibit 5 was attached?
3 INVESTIGATOR SHAKOOR: That's
4 correct.
5 MS. PHILLIPS: And is that what
6 Exhibit 5 to Exhibit A is?
7 INVESTIGATOR SHAKOOR: That's
8 correct.
9 MS. PHILLIPS: And was the owner
10 present when you conducted this regulatory
11 inspection?
12 INVESTIGATOR SHAKOOR: Yes.
13 MS. PHILLIPS: Other than the
14 noise violation, which was a VA violation,
15 were there any other violations?
16 INVESTIGATOR SHAKOOR: No.
17 MS. PHILLIPS: All right. If
18 you'll turn to tab B. You said you rendered
19 these matters into your report. And is this
20 the second report?
21 INVESTIGATOR SHAKOOR: Yes.
22 MS. PHILLIPS: And first of all,
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1 did we talk about everything that you did as
2 part of your investigation in brief from the
3 first part of your investigation covered by
4 the first investigative report?
5 INVESTIGATOR SHAKOOR: I believe
6 so.
7 MS. PHILLIPS: All right. Let us
8 now move to B, which was your second
9 investigative report. At what time did you
10 begin this second investigation?
11 INVESTIGATOR SHAKOOR: The second
12 investigation actually was spurred from the
13 first one. On that night I advised the owner
14 because the sound was emanating to the
15 residences it made it possible to adjust the
16 sound level to such a point where that -- it
17 would no longer be a disturbance to the
18 residents. The owner agreed and we proceeded
19 to conduct a sound test or a sound adjustment.
20 MS. PHILLIPS: And how did you
21 conduct that sound adjustment since you can't
22 be in two places at once, I think?
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1 INVESTIGATOR SHAKOOR: It was
2 coordinated with two of the residents, Mr.
3 Hingoraney and another resident, Mr.
4 Danilovics. I advised them to be inside their
5 residence and I would be inside of the
6 establishment. We would maintain cell phone
7 contact and text message. I would have the
8 establishment play music at their normal level
9 and they would indicate when it was audible,
10 heard and have it lowered to such a level
11 where they thought that it was comfortable.
12 Additionally, we tried to find a
13 level that was comfortable for the
14 establishment that would allow them to operate
15 their business without having it completely
16 off pretty much.
17 MS. PHILLIPS: Okay. And at that
18 point in time did you actually obtain that
19 delicate balance?
20 INVESTIGATOR SHAKOOR: We did.
21 MS. PHILLIPS: And did you notice
22 anything else as part of your investigation?
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1 INVESTIGATOR SHAKOOR: Such as?
2 MS. PHILLIPS: Well, for example,
3 I'm looking at the last paragraph where you
4 indicated that the sound levels that you had
5 achieved would not be touched by any employee.
6 INVESTIGATOR SHAKOOR: That's
7 correct.
8 MS. PHILLIPS: And was there some
9 mechanism on whatever it is you were looking
10 at, the sound board or something, I would
11 assume?
12 INVESTIGATOR SHAKOOR: There's a
13 sound limiter. It's located in a separate
14 closet. Only the owner has access to it. The
15 DJs don't go in there and mess around with it
16 or anything like that at all. On that
17 specific time we took a picture of it and I
18 believe the sound levels are still at that
19 level.
20 MS. PHILLIPS: In the picture?
21 INVESTIGATOR SHAKOOR: Correct.
22 MS. PHILLIPS: From your
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1 investigation and discussions with the owner
2 were you able to determine whether their sound
3 system could be augmented in ways that would
4 circumvent the sound board?
5 INVESTIGATOR SHAKOOR: The way
6 modern technology works it's not a 100-percent
7 system. The DJ laptops I've seen in some
8 other establishments, they can plug into the
9 system that's there at the establishment and
10 sometimes the laptop can actually push out
11 more sound or volume than is -- than what they
12 set it at. It's some kind of glitch in the
13 system.
14 MS. PHILLIPS: All right. I want
15 you to turn to Exhibit 2 for your second
16 report, which is tab B, and labeled Exhibit 2
17 to your investigative report, which is labeled
18 B. What is that?
19 INVESTIGATOR SHAKOOR: Exhibit 6?
20 MS. PHILLIPS: Yes, I don't have
21 that many tabs.
22 INVESTIGATOR SHAKOOR: Under all
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1 my complaint forms?
2 MS. PHILLIPS: No, I think Exhibit
3 2 to your second report --
4 INVESTIGATOR SHAKOOR: Oh, the
5 picture of the sound limiter?
6 MS. PHILLIPS: Okay.
7 INVESTIGATOR SHAKOOR: Yes.
8 MS. PHILLIPS: And then Exhibit 3,
9 which may be tab 7.
10 INVESTIGATOR SHAKOOR: Right,
11 that's a statement from the sound tech, the
12 DJ.
13 MS. PHILLIPS: And is that a DJ
14 that works every night, or do you know?
15 INVESTIGATOR SHAKOOR: Majority
16 times he's there.
17 MS. PHILLIPS: Okay. And you
18 attached that because?
19 INVESTIGATOR SHAKOOR: It was part
20 of the process. He was there.
21 MS. PHILLIPS: Okay. So he was
22 also along with the owner there when you
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1 conducted the sound -- I'm calling it the
2 sound test, for want of better words.
3 INVESTIGATOR SHAKOOR: Correct.
4 MS. PHILLIPS: Okay. Was there
5 anything else that you did with regard to this
6 investigation?
7 INVESTIGATOR SHAKOOR: That pretty
8 much sums it up. Everybody agreed at the
9 level that we had found that day it would work
10 for both parties. And I checked back with
11 them and I hadn't heard any more complaints I
12 think within a two-week time frame.
13 MS. PHILLIPS: So in order to
14 complete your investigation report in a timely
15 manner you allowed two weeks and at that two
16 weeks there had been no complaints. Is that
17 fair?
18 INVESTIGATOR SHAKOOR: Correct.
19 MS. PHILLIPS: I have no more
20 questions and I would move for the admission
21 of the two reports A and B, and the exhibits
22 thereto which have not already been admitted.
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1 INTERIM CHAIRMAN ALBERTI: Any
2 objections?
3 MR. WOODSON: No objection.
4 INTERIM CHAIRMAN ALBERTI: We'll
5 accept those into evidence.
6 MS. PHILLIPS: I have no further
7 questions from this witness.
8 INTERIM CHAIRMAN ALBERTI: Mr.
9 Woodson?
10 MR. WOODSON: Just one question,
11 investigator. Your testimony only made one
12 remark that drew my attention, and that is
13 your response to the Government's question
14 about affecting the change in the sound level
15 once the sound limiter had been locked in
16 place. You described it as in this age of
17 technology it's possible for DJs to plug in
18 and make a change, or change the volumes in
19 some kind of technological fashion. Do you
20 recall that testimony?
21 INVESTIGATOR SHAKOOR: Along those
22 lines, yes.
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1 MR. WOODSON: Yes. Do you have
2 any knowledge that that actually happened --
3 INVESTIGATOR SHAKOOR: No.
4 MR. WOODSON: -- in the Mood
5 Lounge?
6 INVESTIGATOR SHAKOOR: No.
7 MR. WOODSON: Okay. Have you seen
8 that happen in recent time?
9 INVESTIGATOR SHAKOOR: Other
10 establishments in my experience --
11 MR. WOODSON: Yes.
12 INVESTIGATOR SHAKOOR: -- what DJs
13 do, they necessarily use records anymore.
14 They have laptops.
15 MR. WOODSON: Yes.
16 INVESTIGATOR SHAKOOR: So laptops
17 or other computer devices, other software.
18 And they simply just plug into what's there at
19 the establishment. Now, their volume set on
20 their laptop may be different. Okay? And
21 sometimes those volumes can supersede or push
22 out more power than what is already set at the
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1 establishment's system.
2 MR. WOODSON: So your testimony is
3 that these devices in effect can change the
4 amplification systems?
5 INVESTIGATOR SHAKOOR: They can't
6 change it. It's more of an overriding glitch,
7 I guess.
8 MR. WOODSON: I see. But to your
9 knowledge none of those things took place at
10 Mood?
11 MS. PHILLIPS: I'm going to object
12 as to time. This is the second time he's
13 raised this question.
14 MR. WOODSON: Well, yes, the
15 question really goes to the period in issue in
16 his report. His report concludes with a
17 statement around May 31st.
18 MS. PHILLIPS: Okay. That's all I
19 wanted to clarify.
20 MR. WOODSON: Yes.
21 MS. PHILLIPS: Didn't you want to
22 open any doors.
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1 MR. WOODSON: So within that are
2 you aware within that time frame that there
3 had been such an effect at Mood Lounge?
4 INVESTIGATOR SHAKOOR: No.
5 MR. WOODSON: Nothing further.
6 INTERIM CHAIRMAN ALBERTI: Any
7 questions from the Board? Mr. Jones?
8 MEMBER JONES: Thank you, Mr.
9 Chairman.
10 Investigator Shakoor, have you
11 received any complaints subsequent to you
12 completing this review on May 15th?
13 INVESTIGATOR SHAKOOR: Numerous
14 complaints. They've steadily come in almost
15 every week multiple times of the week.
16 MEMBER JONES: Okay. Have you had
17 an opportunity to go back out to the
18 establishment?
19 INVESTIGATOR SHAKOOR: I'm out
20 there almost every weekend.
21 MEMBER JONES: Okay. The time
22 that you spent on May 15th, you arrived at a
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1 harmonious level which was acceptable to at
2 least the individuals that lived in the area
3 that you had an opportunity to visit their --
4 well, who were the exact individuals that you
5 got concurrence from a resident standpoint
6 that they were okay with that level?
7 INVESTIGATOR SHAKOOR: Mr.
8 Hingoraney and Mr. Danilovics.
9 MEMBER JONES: Okay. And --
10 INVESTIGATOR SHAKOOR: One
11 thing --
12 MEMBER JONES: I'm sorry.
13 INVESTIGATOR SHAKOOR: One thing
14 to point out: Mr. Hingoraney, he shares a
15 wall with the establishment. And Mr.
16 Danilovics, he lives above it.
17 MEMBER JONES: Right.
18 INVESTIGATOR SHAKOOR: Okay? So
19 it's two different actually listening points,
20 and one of them is actually directly next to
21 it with a shared and one of them is above it.
22 MEMBER JONES: Understood.
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1 INVESTIGATOR SHAKOOR: So we took
2 those two points in account. One of them was
3 above. He heard very -- nothing at one point.
4 And Mr. Hingoraney, who shares a wall, heard
5 some vibration, but was -- found it to be an
6 acceptable level.
7 MEMBER JONES: Understood. Okay.
8 And after the May 15th visit, the activity
9 there, had you received or have you received
10 complaints related to noise from either one of
11 those two individuals that you named regarding
12 noise?
13 INVESTIGATOR SHAKOOR: Yes, I
14 have.
15 MEMBER JONES: You have? Okay.
16 In your efforts to work with the establishment
17 to establish an agreeable sound level were you
18 physically located -- if I understood you
19 correctly, you were physically located in the
20 establishment?
21 INVESTIGATOR SHAKOOR: Throughout
22 the test I went back and forth.
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1 MEMBER JONES: You went back and
2 forth?
3 INVESTIGATOR SHAKOOR: Correct.
4 MEMBER JONES: Okay. So you did
5 actually hear the impact of the
6 establishment's noise or sound on the
7 residential locations?
8 INVESTIGATOR SHAKOOR: That's
9 correct.
10 MEMBER JONES: Okay. Thank you.
11 Thank you, Mr. Chair.
12 INTERIM CHAIRMAN ALBERTI:
13 Investigator Shakoor, okay, just so I
14 understand, on the 19th when you did the sound
15 test, all right, did you visit Mr.
16 Hingoraney's residence at the point where he
17 said it was an acceptable amount of vibration
18 from the bass?
19 INVESTIGATOR SHAKOOR: Yes, I
20 believe so. I believe I went back and forth.
21 INTERIM CHAIRMAN ALBERTI: Okay.
22 Do you remember what you experienced when you
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1 went on May 15th to Mr. -- because it was on
2 May 15th that you visited Mr. Hingoraney's
3 residence, is that correct?
4 INVESTIGATOR SHAKOOR: Oh, the
5 initial -- of the vibration, yes.
6 INTERIM CHAIRMAN ALBERTI: All
7 right. And you didn't visit any other
8 residence at that --
9 INVESTIGATOR SHAKOOR: No, just
10 that night.
11 INTERIM CHAIRMAN ALBERTI: So, do
12 you remember what you -- can you relate to me
13 the comparison of what you heard on the
14 evening of May 15th and that sound level that
15 was acceptable to Mr. Hingoraney on May 19th's
16 -- comparison of those two?
17 INVESTIGATOR SHAKOOR: On May 15th
18 you could definitely hear the bass thumping.
19 Okay? It was clearly audible. It was not
20 thumping. We had to strain to listen for it.
21 It was clearly audible thumping. We were
22 having a conversation inside of the residence
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1 and you could hear it just above our
2 conversation.
3 INTERIM CHAIRMAN ALBERTI: Above
4 your level of normal conversation?
5 INVESTIGATOR SHAKOOR: Correct.
6 INTERIM CHAIRMAN ALBERTI: To us
7 talking now?
8 INVESTIGATOR SHAKOOR: Correct.
9 We also got onto the balcony and we talked
10 about that. I explained to him that because
11 it's outside it would not be a violation. We
12 were more focused on what's inside, what
13 they're hearing.
14 On the date of May 19th of the
15 sound level adjustment, it was at such a level
16 where people could sleep, he said, and it
17 wouldn't be a problem. And that was my
18 biggest focus.
19 INTERIM CHAIRMAN ALBERTI: He
20 said?
21 INVESTIGATOR SHAKOOR: Correct.
22 INTERIM CHAIRMAN ALBERTI: What do
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1 you think? Do you think people could sleep
2 that evening?
3 INVESTIGATOR SHAKOOR: It's more
4 subjected to them. Like I said --
5 INTERIM CHAIRMAN ALBERTI: Well,
6 I'm trying -- you're the person on the stand
7 and I want to know what your experience was.
8 INVESTIGATOR SHAKOOR: On the day
9 of May 19th I would say it was greatly
10 decreased.
11 INTERIM CHAIRMAN ALBERTI: Okay.
12 From what you experienced on May 19th?
13 INVESTIGATOR SHAKOOR: Absolutely.
14 INTERIM CHAIRMAN ALBERTI: Okay.
15 I have no further questions. Anyone else?
16 (No audible response.)
17 INTERIM CHAIRMAN ALBERTI: Ms.
18 Phillips, any redirect based on these
19 questions that we've asked?
20 MS. PHILLIPS: No, not from the
21 Board.
22 INTERIM CHAIRMAN ALBERTI: Thank
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1 you. Mr. Woodson?
2 MR. WOODSON: Yes, I have one
3 question. I'd like a follow-up question, if
4 you will.
5 INTERIM CHAIRMAN ALBERTI: Based
6 on what we've just asked?
7 MR. WOODSON: Yes.
8 INTERIM CHAIRMAN ALBERTI: Go
9 ahead.
10 MR. WOODSON: Based on the line of
11 questioning from Mr. Jones, in your additional
12 visits you say you visited Mood Lounge several
13 times since the test period.
14 INVESTIGATOR SHAKOOR: That's
15 correct.
16 MR. WOODSON: Yes. In your
17 additional visits did you have occasion to
18 review the sound system?
19 INVESTIGATOR SHAKOOR: Honestly,
20 we did another sound test, so yes. That one
21 included the second floor at the time. At
22 this time, this one -- that was only one
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1 floor. So, yes, we did.
2 MR. WOODSON: Yes, you did? Was a
3 DJ there doing the --
4 INVESTIGATOR SHAKOOR: Yes, the
5 same person.
6 MR. WOODSON: The same person?
7 INVESTIGATOR SHAKOOR: Yes.
8 MR. WOODSON: No further
9 questions.
10 INTERIM CHAIRMAN ALBERTI: Thank
11 you, Mr. Woodson.
12 Investigator Shakoor, you may step
13 down.
14 INVESTIGATOR SHAKOOR: Thank you.
15 INTERIM CHAIRMAN ALBERTI: Ms.
16 Phillips?
17 MS. PHILLIPS: The Government
18 rests and would request the briefest of
19 breaks.
20 INTERIM CHAIRMAN ALBERTI: Okay.
21 Five minutes? Is that okay with everyone?
22 MS. PHILLIPS: That's perfect.
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1 INTERIM CHAIRMAN ALBERTI: They
2 always extend longer, so --
3 MS. PHILLIPS: I will try to make
4 it less than five,
5 INTERIM CHAIRMAN ALBERTI: We are
6 off the record and we'll take a five-minute
7 recess.
8 MS. PHILLIPS: Thank you kindly.
9 INTERIM CHAIRMAN ALBERTI: You're
10 welcome.
11 (Whereupon, at 5:15 p.m. off the
12 record until 5:39 p.m.)
13 INTERIM CHAIRMAN ALBERTI: I
14 apologize. As I said, they always extended.
15 MS. PHILLIPS: Mr. Chair, I have a
16 preliminary matter, if I may.
17 INTERIM CHAIRMAN ALBERTI: Yes.
18 MS. PHILLIPS: It has come to my
19 attention and it's my recollect that this --
20 somebody was recording this matter. And it's
21 my understanding that that is not allowed, but
22 I did not hear an admonition at the beginning
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1 of the session, so if the Board would make an
2 admonition. I'm sure it's been cured by now
3 by my question.
4 INTERIM CHAIRMAN ALBERTI: I'm not
5 understanding.
6 PARTICIPANT: Somebody's taping.
7 Is somebody videotaping?
8 MS. PHILLIPS: It has come to my
9 attention that somebody was recording this
10 hearing.
11 INTERIM CHAIRMAN ALBERTI: In the
12 -- audio recorded?
13 MS. PHILLIPS: In the audience
14 other than the court reporter. And I would
15 like an admonition from the bench that it's
16 unacceptable and they need to erase it, which
17 I'm sure they've already done.
18 INTERIM CHAIRMAN ALBERTI: I'm not
19 sure what we're --
20 MS. PHILLIPS: In hearings --
21 INTERIM CHAIRMAN ALBERTI: There's
22 some vagueness of what the Board's policy is
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1 on audio taping. I know that --
2 MS. PHILLIPS: I do know that in
3 hearings where the press has come they've had
4 to seek permission from the Board to record
5 and the Board has given that request in
6 limited amounts.
7 MEMBER JONES: That's true.
8 INTERIM CHAIRMAN ALBERTI: Yes,
9 that is true.
10 MS. PHILLIPS: You know, I mean,
11 I've had them where they've just had to stand
12 outside.
13 INTERIM CHAIRMAN ALBERTI: That's
14 true.
15 MS. PHILLIPS: And so --
16 MEMBER JONES: Yes.
17 INTERIM CHAIRMAN ALBERTI: It
18 would be our preference that it not occur, but
19 I mean --
20 MS. PHILLIPS: My recollection, it
21 was not allowed. It's certainly not allowed
22 in a court of law unless there's permission by
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1 the judge or an application in writing,
2 etcetera, etcetera.
3 INTERIM CHAIRMAN ALBERTI: I'm
4 going to ask my Board Members how they feel
5 about it.
6 Mr. Brooks, how do you feel about
7 it? We'll do this in an open hearing. I
8 don't want to waste time.
9 MEMBER BROOKS: It should not be
10 allowed.
11 INTERIM CHAIRMAN ALBERTI: Okay.
12 Mr. Jones?
13 MEMBER JONES: Absolutely not
14 allowed, period.
15 INTERIM CHAIRMAN ALBERTI: Mr.
16 Nophlin, the question is whether we should
17 allow private individuals to record this
18 hearing today.
19 MEMBER NOPHLIN: Oh, not allowed.
20 INTERIM CHAIRMAN ALBERTI: Okay.
21 So the decision of the Board that that should
22 not happen. I would -- we will not allow
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1 that. So to you continue today, we ask that
2 you not continue recording, and if you have
3 any recording we ask that you would erase
4 that.
5 MR. RAYMOND: Mr. Chairman, that
6 was me. I'm not attending in my private
7 capacity. I'm an ANC commissioner who was
8 using that purely for my own informational
9 purposes. Didn't intent to post it anywhere
10 knowing that the official record does come out
11 I think in a couple of weeks, isn't that
12 correct?
13 INTERIM CHAIRMAN ALBERTI: That is
14 true, but it is available in two weeks, which
15 I believe is a reasonable time. I can only
16 request that you do that.
17 MR. RAYMOND: Okay.
18 INTERIM CHAIRMAN ALBERTI: And I
19 would ask that you adhere to our request --
20 MR. RAYMOND: Sure.
21 INTERIM CHAIRMAN ALBERTI: -- to
22 erase that. And I know that it was an
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1 innocent mistake, so we don't fault you for
2 that, but we do ask that you don't continue
3 and that you erase that. Thank you very much.
4 MS. PHILLIPS: That concludes my
5 preliminary matter, Mr. Chair.
6 INTERIM CHAIRMAN ALBERTI: Which
7 preliminary matter? Oh, this current one
8 here?
9 MS. PHILLIPS: That concludes my
10 preliminary matter for this session.
11 INTERIM CHAIRMAN ALBERTI: Yes,
12 everything -- well, I will state, to be very
13 perfectly clear, anything that occurred in
14 this hearing after the opening statements --
15 because we do allow recording of opening
16 statements. That has been our policy.
17 Anything after the opening statements we ask
18 that it not -- that it be erased.
19 And your name, sir? I'm sorry.
20 MR. RAYMOND: Matt Raymond.
21 INTERIM CHAIRMAN ALBERTI: Matt
22 Raymond?
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1 MR. RAYMOND: ANC 2-F-04.
2 INTERIM CHAIRMAN ALBERTI: Okay.
3 Okay. Thank you. Thank you, Mr. Raymond.
4 Commissioner Raymond. I appreciate that.
5 Thank you.
6 Okay. Let's continue. Mr.
7 Woodson, if you would --
8 MR. WOODSON: Yes.
9 INTERIM CHAIRMAN ALBERTI: I think
10 your --
11 MR. WOODSON: If I may, Chairman
12 Alberti, we're going -- prior to beginning our
13 case in chief, I'd like to renew a motion --
14 a request to dismiss the proceeding. And
15 actually, I don't need to renew it. I'm going
16 to make it.
17 INTERIM CHAIRMAN ALBERTI: Pardon?
18 MR. WOODSON: I'm going to make a
19 request to dismiss the proceeding. The show
20 cause proceeding that we're here for today is
21 in connection with a violation of the
22 voluntary agreement. The four corners of this
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1 voluntary agreement go to the willingness of
2 the parties; that is, the neighbors and the
3 ANC, but the neighbors particularly and Mood
4 Lounge to try to come to an amicable
5 conclusion regarding the sound level. There's
6 been -- testimony from the Government's
7 witnesses itself reveals that there was that
8 back and forth between the parties. The
9 testimony from the investigator established
10 clearly that at the time that the investigator
11 did his test that the sound levels were deemed
12 to be satisfactory. And the investigator,
13 according to his testimony, showed that there
14 had not been a change in that sound level
15 through the period of time for his testimony.
16 There's no testimony and record evidence about
17 anything that happened beyond that period.
18 One of the purposes served by the
19 ABC's investigative staff in these kinds of
20 circumstances is to provide a benchmark
21 against which the applicants, the owners and
22 the other parties, the ANC or other parties to
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1 voluntary agreements measure their conduct and
2 measure their positions. There's only been
3 one and that sound test showed that and
4 resulted, that sound test resulted in
5 essentially a settlement between the parties.
6 And I submit to you that engaging
7 and imposing a show cause proceeding when
8 there has been a practical settlement between
9 the parties as a result of all of these
10 activities really does not serve the resources
11 of the Board well.
12 In this circumstance what we had
13 at the end of the day is an agreement between
14 Mood Lounge and the Complainants as to
15 acceptable levels of sound, and that had been
16 preceded with a period of back and forth
17 between the parties around what that actually
18 is. It was the intercession of the
19 investigative staff that helped the parties
20 bring clarity to the situation and the
21 controversy, and they reached an agreement.
22 I submit to the Board that a show
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1 cause proceeding under these circumstances is
2 unwarranted and I request that the Board
3 dismiss the proceeding.
4 INTERIM CHAIRMAN ALBERTI: Thank
5 you, Mr. Woodson.
6 Ms. Phillips?
7 MS. PHILLIPS: Thank you, Mr.
8 Chair. Truly the District disagrees. The
9 violation -- if you want to look technically
10 at the voluntary agreement just from pure
11 technicalities on the notice issue, which
12 discussed in Section 15, the notice section,
13 they gave a written notice on 3/9. They had
14 under the voluntary agreement until 4/9 or
15 4/10, whatever 30 days is; I still haven't
16 counted it on the calendar, to cure. The
17 testimony is that they did not cure. And
18 therefore, they have a violation of the
19 voluntary agreement, which is chargeable under
20 the voluntary agreement, as it is, and under
21 the statute.
22 And what happened on May 19th or
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1 May 17th, or whatever day the test was, was an
2 additional chance to cure, which in reality
3 maybe we shouldn't have even continued or
4 contained in the notice or even talked about,
5 because the violation occurred on May -- no,
6 the violation occurred on 30 days after the
7 written notice when they had not cured.
8 And the second point I would like
9 to make is that the page 2 of the voluntary
10 agreement says, "Should any noise, sound" --
11 I've actually reversed that -- "Should any
12 sound, noise or music be heard in any
13 residential premises, Applicant will take
14 immediate remedial action." So not only have
15 they not complied with curing within the
16 notice requirements in the latter sections,
17 they certainly haven't complied with Section
18 6 at any point.
19 If you are going to look only at
20 the test on May 9th, I think that does not --
21 that only establishes that the residents and
22 the establishment were willing to continue to
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1 negotiate and continue to try and continue to
2 reach acceptable level of noise within the
3 voluntary agreement and the noise, but it does
4 not at all extinguish the violation. The
5 violation occurred 30 days after March 9th and
6 continued for two weeks after the test, after
7 two weeks after the test on May 19th,
8 according to the testimony that's in the
9 record. And the Board elicited additional
10 testimony.
11 INTERIM CHAIRMAN ALBERTI: Thank
12 you, Ms. Phillips.
13 The Board's going to take a moment
14 to consider this and seek legal advice on this
15 issue.
16 As Interim Chairperson of the
17 Alcoholic Beverage Control Board for the
18 District of Columbia and in accordance with
19 Section 405 of the Open Meetings Amendment Act
20 of 2010, I move that the ABC Board hold a
21 closed meeting for the purpose of seeking
22 legal advice from our counsel on Case No. 11-
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1 CMP-00175 per Section 405(b)(4) of the Open
2 Meetings Amendment Act of 2010 of 2010.
3 Do I have a second?
4 MEMBER NOPHLIN: Second.
5 INTERIM CHAIRMAN ALBERTI: How say
6 you, Mr. Nophlin?
7 MEMBER NOPHLIN: I agree.
8 INTERIM CHAIRMAN ALBERTI: Mr.
9 Brooks?
10 MEMBER BROOKS: I agree.
11 INTERIM CHAIRMAN ALBERTI: Mr.
12 Jones?
13 MEMBER JONES: I agree.
14 INTERIM CHAIRMAN ALBERTI: I
15 agree. That's four in favor; none opposed.
16 As it appears that the motion has
17 passed, I hereby give notice that the ABC
18 Board will recess this proceeding to hold a
19 closed meeting in the ABC Board conference
20 room pursuant to the Open Meetings Amendment
21 Act of 2010.
22 We will be back shortly.
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1 (Whereupon, at 5:50 p.m. off the
2 record until 5:52 p.m.)
3 INTERIM CHAIRMAN ALBERTI: We are
4 back on the record. We've considered this
5 motion. It's my recommendation to the Board
6 that we deny the motion because there's an
7 allegation based on an incident that occurred
8 on May 15th. And that's really -- as Mr.
9 Woodson kept saying earlier on, that's really
10 what's important here. And what happened on
11 May 19th is interesting and may be relevant to
12 the relationship between the Licensee and the
13 community, but it is not relevant to the
14 allegation made that we are considering here
15 today. And it is up to the Government to
16 either prove or -- well, to prove that
17 allegation, and we're going to allow the
18 Government the opportunity to make a case. So
19 with that, I recommend that we deny the
20 motion.
21 How say you, Mr. Nophlin?
22 MEMBER NOPHLIN: I agree.
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1 INTERIM CHAIRMAN ALBERTI: Mr.
2 Brooks?
3 MEMBER BROOKS: I agree.
4 INTERIM CHAIRMAN ALBERTI: And I
5 agree. That's three in favor; none opposed.
6 Thank you. Let's proceed. Mr.
7 Woodson?
8 MS. GORDON: We'd like to call our
9 first witness, Ms. Abeba Beyene.
10 INTERIM CHAIRMAN ALBERTI: Please
11 approach the witness stand, please. Ms.
12 Beyene, if you would raise your right hand.
13 Do you solemnly affirm that the testimony
14 you're about to provide will be the truth, the
15 whole truth and nothing but the truth?
16 MS. BEYENE: I do.
17 INTERIM CHAIRMAN ALBERTI: Thank
18 you. Please be seated.
19 Ms. Gordon, please proceed.
20 MS. GORDON: Can you please state
21 your full name and spell it for the record,
22 please?
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1 MS. BEYENE: Abeba Beyene, A-B-E-
2 B-A, B-E-Y-E-N-E.
3 MS. GORDON: Okay. Great.
4 MS. PHILLIPS: Mr. Chair, if she
5 continues at that volume, I will not be able
6 to hear her.
7 INTERIM CHAIRMAN ALBERTI: Ms.
8 Beyene, and neither will the Board. We need
9 to hear you, so please speak up.
10 MS. BEYENE: Yes.
11 MS. GORDON: Okay. Are you
12 affiliated with Mood Lounge?
13 MS. BEYENE: Yes.
14 MS. GORDON: What is your
15 affiliation?
16 MS. BEYENE: I'm the owner of Mood
17 Lounge.
18 MS. GORDON: And how long have you
19 been the owner of Mood Lounge?
20 MS. BEYENE: Since January 2011.
21 MS. GORDON: Were you present at
22 Mood Lounge the morning of May 15th, 2011?
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1 MS. BEYENE: Yes.
2 MS. GORDON: Okay. While present
3 on May 15th do you recall ABRA Investigator
4 Shakoor coming to Mood?
5 MS. BEYENE: Yes.
6 MS. GORDON: When Mr. Shakoor
7 arrived did you grant him immediate access to
8 Mood?
9 MS. BEYENE: Yes.
10 MS. GORDON: Did Mr. Shakoor ask
11 you to do anything?
12 MS. BEYENE: He actually asked me
13 to lower the -- he got a complaint from the
14 neighbors about the sound and he asked me to
15 lower the sound, which I did immediately.
16 MS. GORDON: Okay. So you
17 immediately did what he asked you?
18 MS. BEYENE: Yes.
19 MS. GORDON: Which was to lower
20 the sound. Was there any follow up with ABRA
21 after this May 15th meeting with Investigator
22 Shakoor?
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1 MS. BEYENE: Yes, Mr. Shakoor
2 asked me so we can meet I believe three or
3 four days after to do a sound check, which we
4 did. I believe it was on May 19. The meeting
5 was held by me, a sound engineer, Mr. Rishi,
6 the owner of the condominium next door, and I
7 believe another gentleman. I'm not sure his
8 name. And of course Mr. Shakoor, the ABRA
9 investigator.
10 MS. GORDON: Okay. So do you
11 recall or do know, was the other gentleman a
12 neighbor of yours? Do you know -- have any
13 idea where he resided?
14 MS. BEYENE: I believe at that
15 time he was a tenant of Mr. Rishi's
16 condominium.
17 MS. GORDON: So was this the first
18 time doing a similar type of test with your
19 neighbors, a sound test?
20 MS. BEYENE: No, that wasn't the
21 first time. We had done that before without
22 ABRA investigator being present between
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1 myself, the sound engineer, Mr. Rishi. We did
2 a sound test prior to that.
3 MS. GORDON: Prior to May 19th,
4 2011?
5 MS. BEYENE: (No audible
6 response.)
7 MS. GORDON: So I want you to just
8 describe what happened to me a little bit more
9 on May 19th. Can you just describe what
10 happened?
11 MS. BEYENE: The meeting was held
12 by me, Mr. Shakoor, Mr. Rishi, the other
13 gentleman; and I'm sorry, I don't remember his
14 name, the sound engineer, Joseph Adams. And
15 we actually decide to do a sound test. The
16 two gentlemen went back to their condominium.
17 Mr. Shakoor and myself stayed in the lounge
18 and they were going back and forth with a text
19 message to be able to adjust the level of the
20 sound which is suitable for them and as well
21 as the establishment. And we agreed and we
22 set the level.
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1 MS. GORDON: Okay. You said
2 suitable for "them." Who's "them?"
3 MS. BEYENE: My neighbors.
4 MS. GORDON: Neighbors? Okay. So
5 is it fair to say that you found a music level
6 that was acceptable to the neighbors at this
7 May 19th meeting?
8 MS. BEYENE: Yes, through the text
9 message they were exchanging between Mr.
10 Shakoor and Mr. Rishi, Mr. Shakoor told me the
11 sound should stay this way. So the sound
12 limiter was locked. It's always locked in the
13 closet. So we took a picture of that
14 adjustment and locked the closet. Nobody has
15 a key for that closet but me.
16 MS. GORDON: Okay. In front of
17 you there should still be a notebook with
18 exhibits.
19 MS. BEYENE: Yes.
20 MS. GORDON: Can you flip to -- it
21 should be Exhibit B. No. 2 I think that was
22 labeled.
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1 MS. BEYENE: Yes.
2 MS. GORDON: It's the second
3 investigative report. Can you describe to me
4 what you see there? Maybe it's tab --
5 MS. PHILLIPS: Are you --
6 MS. GORDON: I'm looking for
7 the --
8 MS. BEYENE: This basically
9 describe exactly what I just testify.
10 MS. GORDON: But is it a -- can
11 you explain what that picture is? Is it a
12 picture of something?
13 MS. BEYENE: No, ma'am.
14 MR. WOODSON: Okay.
15 MS. BEYENE: I'm not at a picture.
16 I'm at Exhibit B.
17 MS. PHILLIPS: It's attachment 2
18 to Exhibit B. If you keep turning, you'll
19 find what she's asking you for. Since it's my
20 exhibit book.
21 MS. BEYENE: So Exhibit 2?
22 MS. GORDON: Is it a photo?
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1 MS. BEYENE: Yes.
2 MS. GORDON: Photograph?
3 MS. BEYENE: Yes.
4 MS. GORDON: Okay. Is that photo
5 familiar to you?
6 MS. BEYENE: Yes, that's my sound
7 limiter.
8 MS. GORDON: Okay. And does --
9 the picture as it appears right there, does it
10 accurately reflect the volume that was set on
11 May 19th?
12 MS. BEYENE: Yes.
13 MS. GORDON: Okay. And to the
14 best of your knowledge as you sit here today
15 is that still the same way the volume is --
16 MS. BEYENE: Yes.
17 MS. GORDON: Okay. And you said
18 that -- where is the sound limiter kept?
19 MS. BEYENE: In the closet. It's
20 locked.
21 MS. GORDON: Okay. So --
22 MS. BEYENE: It's always been
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1 locked.
2 MS. GORDON: Okay. So does any
3 other employee have access to the closet?
4 MS. BEYENE: No.
5 MS. GORDON: Okay. All right.
6 Thank you. No further questions.
7 INTERIM CHAIRMAN ALBERTI: Ms.
8 Phillips?
9 MS. PHILLIPS: You're familiar
10 with the voluntary agreement, would that be
11 fair?
12 MS. BEYENE: Yes.
13 MS. PHILLIPS: It indicates that
14 you need to get written notice and then 30
15 days to cure, is that correct?
16 MS. BEYENE: Yes.
17 MS. PHILLIPS: There's a copy of
18 it under Exhibit A, if you need to look at it.
19 I think it's tab 4. Would you also agree with
20 me that it indicates that you have 30 days to
21 cure?
22 MR. WOODSON: Mr. Alberti, would
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1 you mind? Cross-examination is supposed to
2 focus upon issues brought out on direct
3 testimony. There's been no direct testimony
4 from this witness whatsoever about the
5 voluntary agreement.
6 INTERIM CHAIRMAN ALBERTI: Ms.
7 Phillips?
8 MS. PHILLIPS: That is totally
9 correct, but the District is requesting some
10 latitude since the whole point of all of this
11 discussion is compliance with the voluntary
12 agreement, because this is a voluntary
13 agreement case. The District would prefer to
14 have some testimony from the owner, but
15 certainly could have undisputed testimony
16 about the voluntary agreement in its own case,
17 and will live with that if it's necessary.
18 INTERIM CHAIRMAN ALBERTI: Just
19 one moment.
20 Okay. I'm going to sustain the
21 objection.
22 MS. PHILLIPS: Fine. The District
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1 has no questions of this witness.
2 INTERIM CHAIRMAN ALBERTI: Thank
3 you.
4 Questions from the Board? Mr.
5 Jones?
6 MEMBER JONES: Thank you, Mr.
7 Chairman.
8 You indicated that you're the
9 owner of the establishment, correct?
10 MS. BEYENE: Yes.
11 MEMBER JONES: You've been the
12 owner since January?
13 MS. BEYENE: Yes, sir.
14 MEMBER JONES: Did you build or
15 did you assume the club, the establishment?
16 Was it already in the form of Mood as in today
17 when you bought it or --
18 MS. BEYENE: Pretty much.
19 MEMBER JONES: It was?
20 MS. BEYENE: Pretty much.
21 MEMBER JONES: Okay.
22 MS. BEYENE: Yes.
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1 MEMBER JONES: Were you party to
2 -- well, no. Were you aware of -- so, I'm
3 sorry. You did indicate during your testimony
4 that you met with Investigator Shakoor?
5 MS. BEYENE: Yes.
6 MEMBER JONES: And that you
7 allowed him into your establishment to conduct
8 some activities?
9 MS. BEYENE: Yes.
10 MEMBER JONES: What activities did
11 he conduct again?
12 MS. BEYENE: He actually -- we met
13 -- are you talking about May 15 or the 19th?
14 MEMBER JONES: Fifteenth. May
15 15th.
16 MS. BEYENE: Well, the 15 he
17 walked in and explain to me he receive a
18 complaint because of the sound being loud from
19 the neighbors. And he asked me to lower the
20 sound, which I did.
21 MEMBER JONES: Why did you feel
22 compelled to lower the sound?
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1 MS. BEYENE: Oh, that's not the
2 first time this happen. That was the first
3 time investigator came. But before that,
4 between myself and the neighbors, we've done
5 this before. We've been through that before.
6 MEMBER JONES: Okay. Why were you
7 compelled to do anything with your business
8 operations at the request of the neighbors?
9 MS. BEYENE: I always feel like I
10 have to do that. I always feel like I have to
11 do what they want me to do.
12 MEMBER JONES: So if a resident in
13 that area said I want you to restrict your
14 operating hours, would you do it?
15 MS. BEYENE: My operating hours,
16 no, but sometimes I put myself in their shoes.
17 And one of the gentleman, Mr. Rishi, he share
18 the wall with the lounge, so me and him we
19 went back and forth several times. And every
20 time I receive, you know, a text message or
21 email from him, i feel obligated to lower the
22 sound.
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1 MEMBER JONES: So why that versus
2 your operating hours? What's the difference?
3 Why do you feel compelled to reduce the sound
4 as opposed to reducing your operating hours?
5 MS. BEYENE: I wish I know. I
6 really don't know.
7 MEMBER JONES: You're saying you
8 have no idea why you're compelled to reduce
9 sound and not anything else?
10 MS. BEYENE: No, one, of course it
11 says on the voluntary agreement --
12 MEMBER JONES: On the voluntary
13 agreement?
14 MS. BEYENE: -- that I have to be
15 able to --
16 MEMBER JONES: So you're aware of
17 the voluntary agreement?
18 MS. BEYENE: Absolutely.
19 MEMBER JONES: Okay.
20 MS. BEYENE: Yes.
21 MEMBER JONES: So in your
22 voluntary agreement what are the requirements
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1 as stated in your voluntary agreement as it
2 relates to sound --
3 MS. BEYENE: Sound.
4 MEMBER JONES: -- being heard in
5 residential residences in the neighborhood?
6 MS. BEYENE: Basically my
7 understanding from voluntary agreement that
8 I'm required to work -- you know, to lower the
9 volume of the sound if it's disturbing the
10 neighbors.
11 MEMBER JONES: So your
12 understanding of the voluntary agreement is
13 that you're to lower the sound of --
14 MS. BEYENE: Yes.
15 MEMBER JONES: -- your music, of
16 your amplified music or is it to --
17 MS. BEYENE: Yes, sound and also
18 bass.
19 MEMBER JONES: You said -- say
20 that again?
21 MS. BEYENE: Bass.
22 MEMBER JONES: Bass?
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1 MS. BEYENE: Yes.
2 MEMBER JONES: Okay. And does
3 that say that -- does your voluntary agreement
4 say that specifically, or is that your
5 interpretation of what it means?
6 MS. BEYENE: My interpretation.
7 My understanding of the voluntary agreement.
8 MEMBER JONES: Okay. Were you --
9 are you a signatory on the voluntary
10 agreement, or did you assume the voluntary
11 agreement as part of the license? Did you
12 actually sign the voluntary agreement?
13 MS. BEYENE: No.
14 MEMBER JONES: You didn't?
15 MS. BEYENE: No.
16 MEMBER JONES: So you assumed it
17 as part of your assuming the license?
18 MS. BEYENE: Yes, sir.
19 MEMBER JONES: Okay. Did you seek
20 clarification on what the words in the
21 voluntary agreement were intended, or how they
22 should be enforced, or how they could be
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1 enforced from either your representative, from
2 a lawyer, from the community at large, or from
3 all those parties, or does this -- your
4 interpretation is the only one that you've
5 been going on?
6 MS. BEYENE: I can say my
7 interpretation.
8 MEMBER JONES: Okay. So as far as
9 you're concerned, for you to meet the
10 requirements as stated in the voluntary
11 agreement, all you have to do is turn down the
12 sound?
13 MS. BEYENE: No.
14 MEMBER JONES: No? Okay. So what
15 else would you have to do?
16 MS. BEYENE: I mean, when it comes
17 to the sound, yes. There's other things on
18 voluntary agreement I have to follow.
19 MEMBER JONES: I'm sorry. I'm
20 focused at this point -- I apologize. I
21 wasn't clear. I'm speaking only about the
22 sound being heard in your neighbors'
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1 residences, right, as a result of your
2 business operations.
3 MS. BEYENE: Volume and --
4 lowering the volume is not the only thing I've
5 done to eliminate the problem.
6 MEMBER JONES: So --
7 MS. BEYENE: I've done several --
8 MEMBER JONES: Help me understand.
9 So, I misunderstood what you said earlier.
10 MS. BEYENE: Okay.
11 MEMBER JONES: So help me
12 understand. What I thought you said earlier
13 was that in order for you to meet the
14 requirements, as you understand them to be, as
15 part of your voluntary agreement, all you were
16 compelled to do was lower the volume.
17 MS. BEYENE: No.
18 MEMBER JONES: Okay.
19 MS. BEYENE: Not -- that's not the
20 only thing.
21 MEMBER JONES: Got you.
22 MS. BEYENE: No.
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1 MEMBER JONES: So what additional
2 are you compelled to do based on your
3 understanding of your voluntary agreement?
4 MS. BEYENE: I've done several
5 things. I can explain those things to you.
6 MEMBER JONES: I'm listening.
7 MS. BEYENE: Okay. From the
8 previous owner they used to use three bass,
9 three amp, and I disconnected two of them.
10 I'm only using one. The wall that we share
11 Mr. -- myself and Mr. Rishi, it has six
12 install speakers, which the previous owner
13 were using. Those are cut. They don't work.
14 They're disconnected to cut the volume. I've
15 done, as the record shows, bought a sound
16 limiter so the sound will not go higher than
17 what we set it. I've done that already.
18 There several steps that I took.
19 MEMBER JONES: Okay. And then how
20 would you know whether or not you've achieved
21 your goal? Like what is your measure of
22 success? So you've done all these things with
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1 the purpose or the intent of accomplishing
2 what?
3 MS. PHILLIPS: So the volume will
4 not be heard.
5 MEMBER JONES: Not be heard where?
6 MS. BEYENE: The neighbors.
7 Through the neighbors' property.
8 MEMBER JONES: In the neighbors'
9 property?
10 MS. BEYENE: Yes.
11 MEMBER JONES: Inside their
12 property? Outside their property? On the
13 balcony? What is your understanding of where
14 it shouldn't be heard?
15 MS. BEYENE: Inside their
16 property.
17 MEMBER JONES: Inside their
18 property?
19 MS. BEYENE: Yes, sir.
20 MEMBER JONES: Okay. So that's
21 your understanding? Is that your -- you've
22 made the changes with the intent of ensuring
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1 that the sound isn't heard inside the
2 neighbors' property as you are compelled to do
3 based on your understanding of your voluntary
4 agreement?
5 MS. BEYENE: Yes, sir.
6 MEMBER JONES: Is that a fair --
7 okay.
8 MS. BEYENE: Yes, sir.
9 MEMBER JONES: So have you
10 received complaints regarding sound being
11 heard inside your neighbors' residences?
12 MS. BEYENE: Oh, I've received
13 complaints when the day -- when the days I'm
14 not even open. I'm not even in the building.
15 I'm the only owner and the only person who has
16 the lock of the building who knows the code of
17 -- the security code. Nobody can get in
18 unless I'm present. And I receive a
19 complaints when the days I was home.
20 MEMBER JONES: So from your
21 standpoint the complaints that -- some the
22 complaints you've received at the very least
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1 are erroneous or not based on --
2 MS. BEYENE: It's not true.
3 MEMBER JONES: Not true?
4 MS. BEYENE: Absolutely.
5 MEMBER JONES: Okay. Are there
6 some complaints that you've received that you
7 would interpret as being valid complaints?
8 MS. BEYENE: Those I take care of.
9 I mean, I react right away. I did whatever I
10 had to do. Those are the things I just
11 mentioned to you, by cutting, you know, by
12 disconnecting them, the amps.
13 MEMBER JONES: Yes.
14 MS. BEYENE: By, you know, having
15 the sound limiter install, by working with the
16 neighbors, by bringing a sound engineer to do
17 the test. It's not one time. I've done the
18 sound test four or five times.
19 MEMBER JONES: I see. So of the
20 things that you did what did you do to verify
21 and confirm that you had met your burden as
22 per your understanding of your voluntary
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1 agreement, which is to not have sound be heard
2 in your neighbors' residences? Did you have
3 your sound engineer conduct a third-party
4 test?
5 MS. PHILLIPS: With Mr. Shakoor.
6 MEMBER JONES: Okay. So your
7 verification was done in conjunction with
8 ABRA's activities with Investigator Shakoor?
9 MS. BEYENE: Yes, sir.
10 MEMBER JONES: So you didn't know
11 whether or not you had met your burden until
12 Investigator Shakoor got involved in the
13 process?
14 MS. BEYENE: That helps. That
15 helps.
16 MEMBER JONES: So what did you
17 do --
18 MS. BEYENE: -- even though I've
19 done that before.
20 MEMBER JONES: You've confirmed it
21 before?
22 MS. BEYENE: Yes, if you want --
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1 MEMBER JONES: So how did you
2 confirm it?
3 MS. BEYENE: The same way.
4 Without Mr. Shakoor being present, the same
5 way.
6 MEMBER JONES: So do you have --
7 did you get confirmation from the neighbor in
8 question saying -- either via email or verbal
9 conversation --
10 MS. BEYENE: Actually, yes, it's
11 done. Yes, I just read one of them.
12 MEMBER JONES: -- text messages
13 saying --
14 MS. BEYENE: Yes.
15 MEMBER JONES: -- we are
16 satisfied?
17 MS. BEYENE: Yes.
18 MEMBER JONES: Okay. What
19 transpired between the time that the neighbor
20 was satisfied and you got confirmation of that
21 and the time where you got another -- what you
22 would consider to be a legitimate complaint
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1 from the neighbor about the sound being too
2 loud? Did you change your operations? Did
3 you change the sound level? Did you change
4 the construct? What happened?
5 MS. BEYENE: Absolutely no change.
6 MEMBER JONES: Nothing?
7 MS. BEYENE: When it comes to the
8 sound, I have not made any change.
9 MEMBER JONES: Okay. The closet
10 that you refer to where the sound limiter is?
11 MS. BEYENE: Yes, sir?
12 MEMBER JONES: What is that
13 closet?
14 MS. BEYENE: It's a closet where
15 the AC, the -- it has -- it's just a closet.
16 It has the AC -- I don't know what you -- what
17 do you call it?
18 MEMBER JONES: Would it be fair to
19 characterize it as a utility closet?
20 MS. BEYENE: Yes, exactly.
21 MEMBER JONES: Do you have your
22 HVAC unit in there?
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1 MS. BEYENE: Exactly.
2 MEMBER JONES: So is there
3 anything else in there besides the HVAC unit?
4 It there a fuse box in there? Is there a mop
5 in there?
6 MS. BEYENE: No mop. Yes, there
7 is a fuse box.
8 MEMBER JONES: There is a fuse
9 box?
10 MS. BEYENE: Yes, sir.
11 MEMBER JONES: Okay. But not
12 generally needed for day-to-day operations?
13 MS. BEYENE: There is a light.
14 Actually there is light I have to turn in
15 every time I go in there.
16 MEMBER JONES: There's a light you
17 have to turn in?
18 MS. BEYENE: Yes, the light switch
19 inside.
20 MEMBER JONES: Okay. I'm sorry.
21 In terms of the access to that closet --
22 MS. BEYENE: Yes.
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1 MEMBER JONES: -- is not required
2 for the day-to-day operations of your
3 establishment, or is it?
4 MS. BEYENE: It does. The lights.
5 MEMBER JONES: It is?
6 MS. BEYENE: The light switch,
7 yes.
8 MEMBER JONES: Okay. And what
9 days are you open?
10 MS. BEYENE: Start Friday and
11 Saturday.
12 MEMBER JONES: Friday and Saturday
13 only?
14 MS. BEYENE: Some days
15 occasionally I open other nights.
16 MEMBER JONES: Okay.
17 MS. BEYENE: Yes, but mostly it's
18 Friday and Saturday.
19 MEMBER JONES: Okay. And so, from
20 the time that you assumed ownership until now
21 you've been there every night that you've been
22 open?
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1 MS. BEYENE: Every single night.
2 MEMBER JONES: Okay. You've not
3 missed a single night?
4 MS. BEYENE: Never.
5 MEMBER JONES: You never -- you
6 haven't gone on vacation or holidays?
7 MS. BEYENE: Never.
8 MEMBER JONES: Okay.
9 MS. BEYENE: I've never been on
10 vacation for the past three years.
11 MEMBER JONES: Okay. Do you have
12 another form of employment?
13 MS. BEYENE: I'm sorry?
14 MEMBER JONES: Do you have another
15 form of employment?
16 MS. BEYENE: No.
17 MEMBER JONES: So this is your
18 sole source of income?
19 MS. BEYENE: Yes, sir.
20 MEMBER JONES: Okay. Thank you.
21 Thank you, Mr. Chairman.
22 INTERIM CHAIRMAN ALBERTI: Other
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1 questions? Mr. Brooks?
2 MEMBER BROOKS: Yes, just a couple
3 questions. Good evening.
4 MS. BEYENE: Good evening.
5 MEMBER BROOKS: You say you're
6 open what, Fridays and Saturdays?
7 MS. BEYENE: Yes, sir.
8 MEMBER BROOKS: Fridays and
9 Saturdays?
10 MS. BEYENE: Yes.
11 MEMBER BROOKS: Okay. And how
12 late are you open?
13 MS. BEYENE: Friday and Saturday
14 until 3:00.
15 MEMBER BROOKS: Until 3:00 a.m.?
16 MS. BEYENE: Yes, sir.
17 MEMBER BROOKS: Oh, okay. And the
18 complaints that you get, is there any special
19 time on those two days, those two nights?
20 MS. BEYENE: Most of the time the
21 minute I open --
22 MEMBER BROOKS: And you open --
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1 MS. BEYENE: -- I receive emails.
2 MEMBER BROOKS: Okay. And you
3 open at what time?
4 MS. BEYENE: Friday I do happy
5 hour.
6 MEMBER BROOKS: So what's that?
7 MS. BEYENE: It starts at 5:00.
8 MEMBER BROOKS: 5:00 p.m.?
9 MS. BEYENE: Yes.
10 MEMBER BROOKS: Okay.
11 MS. BEYENE: Saturday, 10:00 p.m.
12 MEMBER BROOKS: 10:00 p.m.? And
13 at 5:00 p.m. -- you're beginning to get
14 complaints at 5:00 p.m.?
15 MS. BEYENE: I have, yes.
16 MEMBER BROOKS: You have had
17 complaints?
18 MS. BEYENE: Yes.
19 MEMBER BROOKS: Okay. And what
20 are the complaints? Is it just too much
21 noise? The bass is too much?
22 MS. BEYENE: Mostly noise.
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1 MEMBER BROOKS: Noise?
2 MS. BEYENE: The voice. The
3 sound.
4 MEMBER BROOKS: The sound? Okay.
5 And is this a DJ, or is this just stereo music
6 that you piped in?
7 MS. BEYENE: Most of the time it's
8 DJ.
9 MEMBER BROOKS: It's a DJ?
10 MS. BEYENE: Yes.
11 MEMBER BROOKS: So at 5:00 p.m.
12 you have a DJ?
13 MS. BEYENE: Yes, sir.
14 MEMBER BROOKS: Okay.
15 All right. Thank you, Mr.
16 Chairman.
17 INTERIM CHAIRMAN ALBERTI: Mr.
18 Nophlin?
19 MEMBER NOPHLIN: You had discussed
20 the problem with -- first of all, how are you?
21 You discussed the problems with your
22 neighbors? They came and complained --
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1 MS. BEYENE: Yes.
2 MEMBER NOPHLIN: -- about the
3 noise?
4 MS. BEYENE: Yes, they did.
5 MEMBER NOPHLIN: And you said had
6 an engineer to come by to validate what the
7 problems were?
8 MS. BEYENE: Yes, sir.
9 MEMBER NOPHLIN: Did he or she
10 suggest other changes other than turning the
11 volume down? Is there anything else that
12 could be done other than just that?
13 MS. BEYENE: The sound engineer,
14 no, but the neighbors, they have.
15 MEMBER NOPHLIN: They have made
16 what?
17 MS. BEYENE: They suggest for me
18 to do a soundproof the building.
19 MEMBER NOPHLIN: Oh, and you
20 didn't want to do that?
21 MS. BEYENE: I can't afford it.
22 MEMBER NOPHLIN: What does that
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1 mean, by the way?
2 MS. BEYENE: Pretty much a
3 soundproof from wall to wall so no sound would
4 come out.
5 MEMBER NOPHLIN: How long has this
6 been going on? You said since January. Since
7 you purchased --
8 MS. BEYENE: Yes, sir.
9 MEMBER NOPHLIN: -- the club. The
10 ANCs and as well as the neighbors have
11 complained that you were -- they were having
12 problems with the noise?
13 MS. BEYENE: Yes, sir.
14 MEMBER NOPHLIN: And you don't see
15 any other solution to the problem? I mean, is
16 there other ways you could do this other than
17 what you've done?
18 MS. BEYENE: I've done everything
19 that I can. In the meantime they -- recently
20 we had another meeting take place in the
21 establishment with the neighbors. They
22 suggest what I just mentioned, to soundproof
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1 the whole building. I brought a gentleman who
2 -- I didn't even know prior to that how much
3 it cost and he gave me estimate to do a sound
4 -- soundproof the whole building. It's almost
5 6,000 feet, 6,000 square feet building.
6 That's the only other way I know of. What he
7 said it would eliminate the problem.
8 MEMBER NOPHLIN: Who's next to
9 your business? Is there another club next to
10 your business?
11 MS. BEYENE: No. Mr. Rishi condo.
12 He has a condo right next door.
13 MEMBER NOPHLIN: Next door?
14 MS. BEYENE: And on the other side
15 it's a building. It's under renovation right
16 now.
17 MEMBER NOPHLIN: And what is that
18 going to be?
19 MS. BEYENE: From -- the
20 contractor mention to me it's going to be some
21 architect, some kind of architecture office,
22 or something.
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1 MEMBER NOPHLIN: Okay. Thank you,
2 Mr. Chair.
3 INTERIM CHAIRMAN ALBERTI: Hi, Ms.
4 Beyene. You mentioned the installation of a
5 sound limiter.
6 MS. BEYENE: Yes.
7 INTERIM CHAIRMAN ALBERTI: When
8 was that installed?
9 MS. BEYENE: Wish I had the exact
10 date, but I don't. It could be in March,
11 sometimes in March.
12 INTERIM CHAIRMAN ALBERTI: In
13 March?
14 MS. BEYENE: Yes.
15 INTERIM CHAIRMAN ALBERTI: Okay.
16 You said you took steps such as disconnecting
17 two, I guess, basses.
18 MS. BEYENE: Major --
19 INTERIM CHAIRMAN ALBERTI: I guess
20 they would be subwoofers maybe?
21 MS. BEYENE: Yes. Yes. Yes.
22 INTERIM CHAIRMAN ALBERTI: And
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1 other sound equipment? When did you take
2 those steps?
3 MS. BEYENE: The six speakers,
4 which was in the store against the wall, what
5 me and Mr. Rishi share --
6 INTERIM CHAIRMAN ALBERTI: Yes.
7 MS. BEYENE: -- the first
8 complaint that I received from Mr. Rishi.
9 INTERIM CHAIRMAN ALBERTI: So it
10 would have been?
11 MS. BEYENE: In -- sometimes in
12 February.
13 INTERIM CHAIRMAN ALBERTI: In
14 February? Okay. Are you familiar with your
15 sound board?
16 MS. BEYENE: The sound --
17 INTERIM CHAIRMAN ALBERTI: The
18 sound board.
19 MS. BEYENE: Sound system?
20 INTERIM CHAIRMAN ALBERTI: The
21 sound board. I think we had a picture of it.
22 MS. BEYENE: Yes. Yes.
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1 INTERIM CHAIRMAN ALBERTI: Is that
2 what I'm talking about?
3 MS. BEYENE: Yes.
4 INTERIM CHAIRMAN ALBERTI: Are you
5 familiar with it?
6 MS. BEYENE: Yes, sir.
7 INTERIM CHAIRMAN ALBERTI: Because
8 that's where the volume levels are set, is
9 that correct?
10 MS. BEYENE: Yes.
11 INTERIM CHAIRMAN ALBERTI: Okay.
12 So are you familiar with what the sound level
13 is set at currently?
14 MS. BEYENE: Yes, the way Mr.
15 Shakoor set it up, Mr. Shakoor and -- well, he
16 didn't actually did it, but the sound engineer
17 where Mr. Shakoor was there.
18 INTERIM CHAIRMAN ALBERTI: So
19 you're familiar with where it's set right now?
20 MS. BEYENE: Yes. Yes.
21 INTERIM CHAIRMAN ALBERTI: Okay.
22 You spoke about a previous sound check.
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1 MS. BEYENE: Yes.
2 INTERIM CHAIRMAN ALBERTI: Okay?
3 MS. BEYENE: Yes, sir.
4 INTERIM CHAIRMAN ALBERTI: When
5 was that done?
6 MS. BEYENE: One I believe in
7 February. The other one, if I'm not mistaken,
8 is March 20 or 22nd, around that time.
9 INTERIM CHAIRMAN ALBERTI: Well,
10 so you had one done in February. Why did you
11 have one done again in March?
12 MS. BEYENE: Because the
13 complaints did not stop.
14 INTERIM CHAIRMAN ALBERTI: Okay.
15 Did you lower the volume levels between
16 February and March?
17 MS. BEYENE: Yes, every day I'm
18 adjusting something, either disconnect the
19 speaker -- and actually at the beginning the
20 first -- the second floor was not ever opened.
21 We only had one floor.
22 INTERIM CHAIRMAN ALBERTI: Okay.
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1 So when did you open the second floor?
2 MS. BEYENE: I'm not sure exactly
3 the date.
4 INTERIM CHAIRMAN ALBERTI: Give me
5 a month?
6 MS. BEYENE: Maybe about April.
7 INTERIM CHAIRMAN ALBERTI: April?
8 Okay. And did you have a sound check done
9 after you opened the second floor?
10 MS. BEYENE: That's the sound
11 check we did with Mr. Shakoor on May.
12 INTERIM CHAIRMAN ALBERTI: Okay.
13 But other than that you had no sound check
14 done?
15 MS. BEYENE: No.
16 INTERIM CHAIRMAN ALBERTI: On May
17 15th when Mr. Shakoor came in and talked to
18 you, all right --
19 MS. BEYENE: Yes.
20 INTERIM CHAIRMAN ALBERTI: -- you
21 said you lowered the volume, is that correct?
22 MS. BEYENE: Yes.
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1 INTERIM CHAIRMAN ALBERTI: Did you
2 adjust the sound board after that?
3 MS. BEYENE: No, I didn't -- even
4 at that time I didn't touch the sound board.
5 What I did is the volume from the DJ booth,
6 for the DJ to put the volume down.
7 INTERIM CHAIRMAN ALBERTI: Oh,
8 okay. So, well, maybe I'm being confused.
9 The volume from the DJ, is that what's locked
10 now?
11 MS. BEYENE: No, the main
12 controller is locked. But just like Mr.
13 Shakoor earlier testified, some DJs, when they
14 come in --
15 INTERIM CHAIRMAN ALBERTI: So if
16 you wanted to turn up the volume, what would
17 you do?
18 MS. BEYENE: I'm sorry, sir?
19 INTERIM CHAIRMAN ALBERTI: If you
20 wanted to turn up the volume, what would you
21 do? Not a sound engineer. You. If you
22 wanted to turn up the volume, what would you
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1 do?
2 MS. BEYENE: I go to the DJ booth.
3 INTERIM CHAIRMAN ALBERTI: Yes.
4 MS. BEYENE: And I tell them -- if
5 they're using a computer, a laptop, I tell
6 them that to lower the volume from the laptop.
7 Because some DJs, they come with a laptop. So
8 that laptop, it's hard to control the volume.
9 That's not a part of the sound system of the
10 establishment.
11 INTERIM CHAIRMAN ALBERTI: When
12 Mr. Shakoor -- I'm a little confused. So when
13 Mr. Shakoor did this -- after Mr. Shakoor was
14 there doing his sound check, all right --
15 MS. BEYENE: Yes.
16 INTERIM CHAIRMAN ALBERTI: --
17 there's a volume level on the sound board, or
18 for the DJ stand, right?
19 MS. BEYENE: When it comes to --
20 INTERIM CHAIRMAN ALBERTI: Is
21 there a volume level by the -- this volume
22 level that you -- knob that you spoke of,
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1 where is that?
2 MS. BEYENE: The main controller
3 is in a closet.
4 INTERIM CHAIRMAN ALBERTI: The
5 main controller? And that's where there's a
6 main volume level?
7 MS. BEYENE: Yes.
8 INTERIM CHAIRMAN ALBERTI: Okay.
9 MS. BEYENE: Yes.
10 INTERIM CHAIRMAN ALBERTI: So was
11 that set during the sound check that --
12 MS. BEYENE: Yes.
13 INTERIM CHAIRMAN ALBERTI: -- Mr.
14 Shakoor was involved in?
15 MS. BEYENE: Yes.
16 INTERIM CHAIRMAN ALBERTI: Okay.
17 And do you remember where that was when Mr.
18 Shakoor came that evening?
19 MS. BEYENE: Was always been in a
20 closet.
21 INTERIM CHAIRMAN ALBERTI: No, I
22 mean what was it set at? Do you remember the
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1 level it was set at?
2 MS. BEYENE: Oh, the level?
3 INTERIM CHAIRMAN ALBERTI: Yes.
4 MS. BEYENE: The level is the way
5 we adjusted prior to that --
6 INTERIM CHAIRMAN ALBERTI: I
7 understand.
8 MS. BEYENE: -- when Mr. Rishi --
9 INTERIM CHAIRMAN ALBERTI: Do you
10 know the level that it was set at before the
11 sound check was done with Mr. Shakoor?
12 MS. BEYENE: It was the level the
13 way we set it that -- me, myself, Mr. Rishi
14 and the sound engineer prior to that.
15 INTERIM CHAIRMAN ALBERTI: Okay.
16 And was that level higher or lower than it was
17 after Mr. Shakoor's -- immediately after Mr.
18 Shakoor's visit?
19 MS. BEYENE: If I'm -- I believe
20 we lower it more.
21 INTERIM CHAIRMAN ALBERTI: You
22 lowered it more?
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1 MS. BEYENE: Yes.
2 INTERIM CHAIRMAN ALBERTI: During
3 the -- from the 1st of April to the time that
4 Mr. Shakoor showed up on May 15th had you ever
5 touched that volume level?
6 MS. BEYENE: Twice when we did a
7 sound check with the neighbors.
8 INTERIM CHAIRMAN ALBERTI: Ah, no,
9 from April. You didn't mention any sound
10 checks after April.
11 MS. BEYENE: Oh, no. No.
12 INTERIM CHAIRMAN ALBERTI: So you
13 never touched it?
14 MS. BEYENE: No. I'm the one who
15 has a key.
16 INTERIM CHAIRMAN ALBERTI: Okay.
17 MS. BEYENE: I never touched it.
18 INTERIM CHAIRMAN ALBERTI: So
19 you're saying -- so, if I'm understanding you
20 right, the only difference is --
21 MS. BEYENE: Yes.
22 INTERIM CHAIRMAN ALBERTI: -- the
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1 only thing that could affect the sound
2 differences --
3 MS. BEYENE: Yes.
4 INTERIM CHAIRMAN ALBERTI: -- from
5 the time you did those sound checks --
6 MS. BEYENE: Yes.
7 INTERIM CHAIRMAN ALBERTI: -- all
8 right -- because you're telling me you -- did
9 you change anything on the sound board after
10 you did those sound checks with the -- the
11 February sound check with the neighbors? Did
12 you adjust anything on the sound board?
13 MS. BEYENE: We adjusted twice.
14 INTERIM CHAIRMAN ALBERTI: With
15 the neighbors?
16 MS. BEYENE: With the neighbors.
17 INTERIM CHAIRMAN ALBERTI: During
18 a sound check?
19 MS. BEYENE: Yes.
20 INTERIM CHAIRMAN ALBERTI: Then
21 after that did you adjust anything on the
22 sound board before Mr. Shakoor's visit?
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1 MS. BEYENE: No. No.
2 INTERIM CHAIRMAN ALBERTI: And you
3 didn't adjust the sound level, is that -- or
4 did you adjust the sound level?
5 MS. BEYENE: No.
6 INTERIM CHAIRMAN ALBERTI: No?
7 MS. BEYENE: No.
8 INTERIM CHAIRMAN ALBERTI: All
9 right. So you're telling me that the only
10 thing that could happen is that it's the
11 volume controlled by the DJ's computer?
12 MS. BEYENE: Yes.
13 INTERIM CHAIRMAN ALBERTI: Because
14 that's how that works. There's a little
15 volume controller on the computer and it's the
16 input and you raise the volume level of the
17 input --
18 MS. BEYENE: That's the only way.
19 INTERIM CHAIRMAN ALBERTI: -- and
20 it raises the volume that comes out of the
21 system.
22 MS. BEYENE: Yes.
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1 INTERIM CHAIRMAN ALBERTI: And
2 that -- you're saying -- telling me that's
3 where the issue is?
4 MS. BEYENE: Yes.
5 INTERIM CHAIRMAN ALBERTI: Okay.
6 Do you to anything to test that volume when
7 the DJ comes in to plug in?
8 MS. BEYENE: That's the issue with
9 every DJ who walks in.
10 INTERIM CHAIRMAN ALBERTI: I
11 understand.
12 MS. BEYENE: That's the first
13 thing I do is explain the issue with the
14 neighbors. The sound system, the sound volume
15 cannot go higher. Every single DJ.
16 INTERIM CHAIRMAN ALBERTI: Higher
17 than what?
18 MS. BEYENE: Higher than what it
19 is. So they make -- I make sure --
20 INTERIM CHAIRMAN ALBERTI: Well,
21 wait, wait. It's being -- how do you measure
22 the level of the sound? I mean, if it's
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1 dependent on the DJ's computer, you're telling
2 me you haven't touched anything on that sound
3 board. You haven't changed the sound level of
4 your system, all right?
5 MS. BEYENE: Yes.
6 INTERIM CHAIRMAN ALBERTI: So I
7 have to conclude -- based on your testimony --
8 MS. BEYENE: Yes, sir.
9 INTERIM CHAIRMAN ALBERTI: -- I
10 have to conclude that the only way to affect
11 the volume in the club is from the DJ's
12 computer. Are you with me?
13 MS. BEYENE: Yes, sir.
14 INTERIM CHAIRMAN ALBERTI: All
15 right. So a DJ comes in and plugs in. How do
16 you measure the sound that's emanating from
17 your system?
18 MS. BEYENE: Because we already
19 have limited. We already have limited, so
20 they have to stay with that.
21 INTERIM CHAIRMAN ALBERTI: How's
22 -- it's not limited because the DJ can turn up
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1 his volume max, or he can put it on half
2 volume.
3 MS. BEYENE: With his -- with
4 their laptop. They can't do anything with the
5 sound system.
6 INTERIM CHAIRMAN ALBERTI: I know
7 that's not changing, but we've just confirmed
8 that the sound coming out of your system can
9 be affected by the computer that's plugged
10 into it.
11 MS. BEYENE: It happened.
12 INTERIM CHAIRMAN ALBERTI: Yes.
13 MS. BEYENE: I'm sure.
14 INTERIM CHAIRMAN ALBERTI: So I'm
15 asking you how do you measure the sound? Once
16 a new -- a different -- each time a computer
17 is plugged in, how do you measure the sound?
18 MS. BEYENE: One of the -- one,
19 the sound engineer --
20 INTERIM CHAIRMAN ALBERTI: No, how
21 do you measure the sound --
22 MS. BEYENE: The sound --
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1 INTERIM CHAIRMAN ALBERTI: --
2 because the sound engineer's not there every
3 time.
4 MS. BEYENE: No, he is.
5 INTERIM CHAIRMAN ALBERTI: How do
6 you measure --
7 MS. BEYENE: He's there every
8 time.
9 INTERIM CHAIRMAN ALBERTI: He's
10 there every day?
11 MS. BEYENE: Yes.
12 INTERIM CHAIRMAN ALBERTI: Every
13 time you open up?
14 MS. BEYENE: Every time I open,
15 he's there. He's --
16 INTERIM CHAIRMAN ALBERTI: There's
17 a sound engineer? And how does he measure?
18 MS. BEYENE: He's a sound
19 engineer. He also a DJ.
20 INTERIM CHAIRMAN ALBERTI: How
21 does he measure the sound?
22 MS. BEYENE: I'm not sure how he
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1 measures the sound, but he knows exactly how
2 the sound system is set. It has to stay there
3 all times.
4 INTERIM CHAIRMAN ALBERTI: Okay.
5 I have no further questions.
6 Mr. Jones?
7 MEMBER JONES: Thank you, Mr.
8 Chairman. How are you defining a sound
9 engineer?
10 MS. BEYENE: He's someone who is
11 familiar to the sound system since from the
12 previous owner.
13 MEMBER JONES: What qualifies him
14 as an engineer?
15 MS. BEYENE: He knows the sound
16 better than I do and he works for a radio
17 station, 93.9, as a sound engineer.
18 MEMBER JONES: Does he have a
19 degree?
20 MS. BEYENE: I'm not sure --
21 MEMBER JONES: Does he have any
22 certifications?
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1 MS. BEYENE: -- what kind of
2 degree he has.
3 MEMBER JONES: Does he have any
4 certifications?
5 MS. BEYENE: What I know is he
6 works for a radio station as a sound engineer.
7 MEMBER JONES: Okay. I guess I'm
8 having some trouble, because when you
9 originally said "sound engineer," I gave it a
10 little bit more credence than I think I'm
11 giving it now in terms of what my
12 understanding of a sound engineer is and what
13 your understanding of a sound engineer is.
14 And so, did your sound engineer
15 conduct a sound analysis? Did he conduct a
16 study? And if so, did he provide you with the
17 output of said study?
18 MS. BEYENE: A study in what?
19 MEMBER JONES: A study indicating
20 what the impact of your source, your sound
21 source is on the environment surrounding your
22 establishment.
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1 MS. BEYENE: Yes, those are the
2 sound test we've done with him.
3 MEMBER JONES: So he's provided
4 you a study?
5 MS. BEYENE: Yes.
6 MEMBER JONES: He has?
7 MS. BEYENE: Yes, I have --
8 MEMBER JONES: You have the study
9 here?
10 MS. BEYENE: Yes. Yes, I do.
11 MEMBER JONES: Okay. What did the
12 study -- since it hasn't been submitted in any
13 way, we haven't had a chance to review it, so
14 I'm asking you tell me what the sound study
15 said.
16 MS. BEYENE: Pretty much what he
17 -- one of the --
18 MEMBER JONES: Do you have it in
19 front of you?
20 MS. BEYENE: No.
21 MEMBER JONES: Oh, you don't?
22 Okay.
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1 MS. BEYENE: I can look for it.
2 One of them, when we did the sound test with
3 the neighbors he adjusted the bass in the
4 sound the way it works for both party, for the
5 establishment and for the neighbors.
6 MEMBER JONES: So how did he
7 measure it for the neighbors?
8 MS. BEYENE: The same thing Mr.
9 Shakoor did, by going back and forth with text
10 message with the owners of the condominium
11 next door.
12 MEMBER JONES: So he didn't
13 actually take measurements? He didn't take
14 readings? He didn't have a decibel meter
15 where he actually measured what the produced
16 sound was inside of the residents'
17 establishment or place of domicile?
18 MS. BEYENE: I think --
19 MEMBER JONES: It was more of a
20 relative, kind of a touchy-feel as opposed to
21 a raw study? because do you have a --
22 MS. BEYENE: Actually --
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1 MEMBER JONES: Are you saying you
2 have a report that says this is what the
3 decibel levels were heard when it was set at
4 this level in the establishment at this
5 volume, that these are the decibels that were
6 heard inside of the residents' establishment?
7 MS. BEYENE: No.
8 MEMBER JONES: Okay. Thank you.
9 Thank you, Mr. Chairman.
10 INTERIM CHAIRMAN ALBERTI: Thank
11 you. Mr. Woodson, any redirect based on the
12 Board's questions?
13 MR. WOODSON: I will let the
14 testimony stand.
15 INTERIM CHAIRMAN ALBERTI: Thank
16 you. Ms. Phillips, any recross?
17 MS. PHILLIPS: On this point, I
18 concur with Mr. Woodson. No recross on behalf
19 of the District.
20 INTERIM CHAIRMAN ALBERTI: Thank
21 you. Well, Ms. Beyene --
22 MS. BEYENE: Yes?
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1 INTERIM CHAIRMAN ALBERTI: -- you
2 may step down.
3 MS. BEYENE: Thank you.
4 INTERIM CHAIRMAN ALBERTI: Thank
5 you. Okay. I think we're -- Mr. Woodson, any
6 further witnesses?
7 MS. GORDON: No, sir.
8 INTERIM CHAIRMAN ALBERTI: I'm
9 sorry. Ms. Gordon, I'm sorry. I apologize.
10 Okay. So I think we'll move to
11 closing arguments. Ms. Phillips?
12 MS. PHILLIPS: Thank you, Mr.
13 Chair. I'll try to be brief.
14 The evidence is -- the testimony
15 and document evidence is replete with
16 discussions of complaints both prior to the
17 first written notice and after the first
18 written notice, after the notice -- after the
19 time to cure and that there were continued
20 noise violations that were also reported back
21 after the time to cure.
22 The only -- we have testimony from
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1 two witnesses that they were only going to
2 complain about noise that was what I would
3 call unreasonable, and to describe it as they
4 did, noise that exceeded a conversational
5 level, which I think all three testified to,
6 including Mr. Shakoor, noise from the
7 establishment that exceeded a television set
8 set at an acceptable level.
9 So the violation technically
10 occurred 30 days after the notice and there is
11 both testimony and documentary evidence that
12 there were still problems after the 30 days to
13 cure ran. That is a violation of the
14 voluntary agreement without any intervention
15 from ABRA. Then there was an additional visit
16 by ABRA where the investigator testified that
17 he documented noise in the condominiums and
18 asked them to turn it down. And then there
19 was an additional test where he documented
20 levels and then set them. The violation
21 occurred when they did not cure. There's
22 ample evidence to that effect.
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1 But if we were looking strictly at
2 the voluntary agreement, whether anyone likes
3 it or not, it says, "Should any sound, noise
4 or music be heard in any residential premises,
5 Applicant will take immediate remedial
6 action."
7 The Complainant's did not ask to
8 have all noise -- because that's what "any
9 noise" means to me. There may be a different
10 interpretation, and you can interpret it
11 however you choose, because you're the finder
12 of fact. They asked for the reasonable levels
13 described. There was a definite violation
14 that occurred 30 days after March 9th, and
15 they have violated the voluntary agreement in
16 other ways.
17 And therefore, the District moves
18 that you find in favor of the District and
19 uphold the charge and consider a five of $500,
20 which is the statutory requirement maximum for
21 the first violation. Therefore, I can ask for
22 no greater fine, according to the statute.
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1 And consider closing them, having a suspension
2 and a served suspension for two days on a
3 Friday or Saturday, if not more days, but
4 that's the discretion of the Board.
5 INTERIM CHAIRMAN ALBERTI: Thank
6 you, Ms. Phillips.
7 Mr. Woodson?
8 MR. WOODSON: Yes. The
9 Government's case is hinged on language in
10 Section 6 and Section 11 of the voluntary
11 agreement, a fact which the Government just
12 invited my attention to the details of the
13 language. And the details of the language
14 around Section 6 is "any audible sound" for
15 which the Complainants can issue a request to
16 the ABC Board for the issuance of a notice of
17 violation.
18 I'm also invited -- invite the
19 Board's attention to Section 16, which speaks
20 of notice and enforcement. And it says --
21 after the parenthetical about halfway down,
22 which begins "30 such days," it says "a
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1 material violation of this agreement which has
2 not bee cured." Not any violation, but a
3 material violation.
4 There's a reason for a distinction
5 in language like that, because any statement
6 in a legal document with a command that has no
7 option and for which there is no leeway
8 suffers from the problem of impossibility.
9 It's not possible in any set of circumstances
10 to be -- to say there will be none at any time
11 under any circumstances. It doesn't matter
12 what the prescription is. That's why legal
13 documents contain language around materiality
14 when there's a claim of violation. Every
15 violation is not material and it is material
16 violations which rise to the level of sanction
17 from the Board.
18 Now, I would -- that's one. I
19 would also submit to the Board that the sum of
20 the testimony reveals clearly that the parties
21 complained, the establishment responds. That
22 was the sole purpose of the testimony from the
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1 owner of Mood Lounge, was to show the Board
2 through her direct testimony and in responses
3 to your questions that she took action from
4 the beginning to try to bring resolution to
5 this.
6 So the other material -- the other
7 significant aspect of the voluntary agreement
8 has in fact been addressed, and that is the
9 willingness of Mood Lounge, the owner of the
10 establishment, to take steps to resolve the
11 circumstances, to resolve the complaints.
12 That has been done. That has been done.
13 The question to be asked today is
14 whether any violation, whether any departure
15 from the prescription of Section 6 is
16 sufficient to be a material breach. We submit
17 that it is not, that the -- again, that the
18 testimony has revealed that there has been and
19 continues to be a genuine substantial effort
20 on the part of Mood Lounge to satisfy the
21 unreadinesses of the Complainants.
22 May I also add that it's an
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1 inherent circumstance in our fair city that
2 these types of irritations between residents
3 and establishments take place throughout the
4 District, and they take place because of the
5 compact nature of our living environment. I
6 observe that this circumstance with Mood
7 Lounge and its predecessor, which was a CT
8 license in operation before, took place and
9 operated in an adjacent property to the
10 condominium owners. There's not going to be
11 a circumstance -- I submit to you there will
12 never be a circumstance where all will be
13 completely satisfied as long as both
14 businesses survive.
15 If the businesses continue, there
16 will be irritations between them. The
17 objective of the -- the true objective of
18 language like this is to encourage the parties
19 to reach accommodation with one another, and
20 that happens when one party registers an
21 unreadiness, the other party responds. That
22 has happened.
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1 And we submit that there has been
2 compliance with the terms of the voluntary
3 agreement, that the issues before us today do
4 not rise to the level of a material breach and
5 we request that the Board dismiss the
6 proceeding.
7 INTERIM CHAIRMAN ALBERTI: Thank
8 you, Mr. Woodson.
9 If there are no objections, I will
10 close the record at this time.
11 MS. PHILLIPS: No objection from
12 the District.
13 MR. WOODSON: No objection.
14 INTERIM CHAIRMAN ALBERTI: Okay.
15 Are the parties going to waive findings of
16 fact and conclusions of law?
17 MS. PHILLIPS: The District will
18 indeed.
19 MR. WOODSON: Yes, we will.
20 INTERIM CHAIRMAN ALBERTI: Thank
21 you. I think everything except actually
22 closing this hearing -- I think we've
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1 concluded, if there's no other matters to be
2 dealt with.
3 MR. WOODSON: May I ask one
4 question, Mr. Alberti?
5 INTERIM CHAIRMAN ALBERTI: Sure.
6 MR. WOODSON: Is it the intent of
7 the Board to issue its decision tonight, or
8 does the Board wish to deliberate and notify
9 the parties at a future time?
10 INTERIM CHAIRMAN ALBERTI: We will
11 be notifying you at a future time.
12 MR. WOODSON: Thank you.
13 INTERIM CHAIRMAN ALBERTI: And in
14 my closing statement I will give you a time
15 frame.
16 MR. WOODSON: That's fine. Thank
17 you.
18 INTERIM CHAIRMAN ALBERTI: As
19 Interim Chairperson of the Alcoholic Beverage
20 Control Board for the District of Columbia and
21 in accordance with Section 405 of the Open
22 Meetings Amendment Act of 2010, I move that
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1 the ABC Board hold a closed meeting for the
2 purpose of deliberating upon Case No. 11-CMP-
3 00175 for the reasons cited in Section
4 405(b)(13) of the Open Meetings Amendment Act
5 of 2010.
6 Do I have a second?
7 MEMBER NOPHLIN: Second.
8 INTERIM CHAIRMAN ALBERTI: Thank
9 you, Mr. Nophlin. How say you, Mr. Nophlin?
10 MEMBER NOPHLIN: I agree.
11 INTERIM CHAIRMAN ALBERTI: Mr.
12 Brooks?
13 MEMBER BROOKS: I agree.
14 INTERIM CHAIRMAN ALBERTI: Mr.
15 Jones?
16 MEMBER JONES: I agree.
17 INTERIM CHAIRMAN ALBERTI: And I
18 agree. That's four in favor; none opposed.
19 As it appears that the motion has
20 passed, I hereby give notice that the ABC
21 Board will hold a closed meeting in the ABC
22 Board room today pursuant to the Open Meetings
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1 Amendment Act of 2010 and issue an order
2 within 90 days.
3 MR. WOODSON: Thank you, Mr.
4 Alberti.
5 INTERIM CHAIRMAN ALBERTI: Thank
6 you. I thank everyone for coming.
7 MR. WOODSON: Thank you.
8 (Whereupon, the hearing was
9 concluded at 6:43 p.m.)
10
11
12
13
14
15
16
17
18
19
20
21
22
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AABC 16:20 146:20
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buildings 2:17 28:833:15 34:9 115:13
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B-A 150:2B-E-Y-E-N-E
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CC 2:15 37:19 79:9
85:14 86:19 92:1792:21 95:12 100:6
calendar 43:11144:16
call 3:4 5:19 6:49:18 45:22 68:2186:4 98:4,7101:10 149:8173:17 205:3
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90:16 102:8certainly 38:3
39:21 137:21145:17 158:15
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Chair 3:16,17 5:96:19 10:7 11:1819:22 20:17 41:1641:17 44:2 45:545:11 53:13,1993:6 129:11135:15 140:5144:8 150:4 183:2204:13
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Chairperson 1:171:18 146:16212:19
chamber 29:1chance 29:11 145:2
201:13change 94:22 95:5
123:14,18,18125:3,6 142:14173:2,3,3,5,8193:9
changed 94:20196:3
changes 114:14168:22 180:10
changing 197:7characterize
173:19characterized
73:20charge 6:19 9:11
206:19chargeable 144:19check 51:10 152:3
185:22 187:8,11187:13 189:14
190:11 191:11192:7 193:11,18
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193:5,10chief 46:9 141:13choose 51:2 206:11choosing 50:13churches 35:5circumstance
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circumstances26:12 50:18,2151:1 80:15 82:598:20 142:20144:1 208:9,11209:11
circumvent 120:4cited 213:3city 74:4,4 210:1claim 208:14clarification 98:3
164:20clarify 97:16 98:8
125:19clarity 143:20Class 1:8 106:3clear 60:12 74:3
95:22 140:13165:21
cleared 37:8clearly 47:10
112:20 130:19,21142:10 208:20
close 31:18 211:10closed 35:21
100:14 146:21147:19 213:1,21
closely 79:19closet 119:14
154:13,14,15156:19 157:3173:9,13,14,15,19174:21 190:3,20
closing 2:3,4204:11 207:1211:22 212:14
club 159:15 181:9182:9 196:11
CMP-00175 3:5147:1
code 7:15 105:19106:5,6 110:13115:18 169:16,17
colleague 18:2color 30:10Columbia 1:1 3:12
45:22 66:17101:11 146:18212:20
come 26:3 33:1856:20 75:5 78:379:16 94:1 126:14135:18 136:8137:3 139:10142:4 180:6 181:4188:14 189:7
comes 165:16173:7 189:19194:20 195:7196:15
comfortable118:11,13
coming 92:10105:9 151:4 197:8214:6
command 208:6Commercial 106:4commissioner
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Complainant's206:7
complained 179:22181:11 208:21
complaining 69:373:19
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69:14 72:4,1780:7 86:16,1892:6 95:13,1596:2,9 102:11104:20 105:16108:18 122:11,16126:11,14 128:10169:10,13,19,21169:22 170:6,7177:18 178:14,17178:20 186:13204:16 209:11
complete 35:1391:12 122:14
completed 35:736:9
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214:9concludes 93:6
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condominium 2:192:20,21 21:1322:7 26:19 27:1730:1 32:2 33:2135:14 48:3,13,2249:9,9 50:7,851:14,18,18 52:1254:1 67:16 71:973:12 75:17,1977:15 79:17102:11 152:6,16153:16 202:10210:10
condominiums69:11 205:17
condos 77:15111:21
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conducted 12:1182:21 87:11116:10 122:1
conduit 16:8conference 147:19confines 71:8confirm 9:8 170:21
172:2confirmation 172:7
172:20confirmed 171:20
197:7confused 188:8
189:12conjunction 171:7connection 48:1
141:21
consider 146:14172:22 206:19207:1
considered 49:1269:6 148:4
considering 148:14considers 68:5 69:7construct 173:4contact 44:20
98:16 118:7contacted 102:9,18
107:8,8 110:19contacting 105:4contain 85:15
208:13contained 6:21
14:8 52:12 85:12145:4
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84:9content 79:9contention 7:2context 14:1,5 54:9
59:8contiguous 48:13continue 20:20
65:7 66:11 84:6139:1,2 140:2141:6 145:22146:1,1 210:15
continued 54:20,21145:3 146:6204:19
continues 150:5209:19
contractor 182:20control 1:2,14,15
146:17 189:8212:20
controlled 194:11controller 188:12
190:2,5 194:15controversy 143:21conversation
130:22 131:2,4172:9
conversational205:4
conveyed 69:2270:1,12,13
coordinated 118:2copies 103:13copy 157:17corner 50:1corners 98:11
110:13 141:22correct 25:5,6
30:14 33:22 39:1242:14 48:19 57:2158:3,7 67:11 79:287:20 91:10 96:18103:6 104:17105:22 106:12107:11 108:1,6,13109:9,11,15 110:4110:9 111:6,15,19115:20 116:4,8119:7,21 122:3,18129:3,9 130:3131:5,8,21 133:15139:12 157:15158:9 159:9 185:9187:21
corrective 9:6correctly 128:19cost 182:3Council 21:19counsel 4:1 14:9
20:1 38:2 146:22count 65:2counted 144:16couple 59:3 73:18
139:11 177:2course 47:6 152:8
162:10court 2:18 21:4,11
23:16 29:22 35:244:16 47:15 49:18106:3 136:14137:22
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27:13,16 28:536:16 49:21
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2:21 10:4 21:5,621:10,15,18 22:522:14,19,21,2223:7,14,22 24:524:12,15,18,2125:1,6,11,14,1725:21 26:5,10,1327:5,9,15,20 28:728:14,19 29:4,14
29:19,21 30:7,1130:14,18,21 31:531:12,15,17 32:132:10,13,18,2033:6,13,17,2234:2,13,17 35:1035:15 36:11 41:2242:3,8,15,18,2243:7,10,18 44:944:14 45:18,18,2071:15 79:1 105:5118:4 127:8,16
date 25:8,12,1526:15 42:2,3 43:951:1,7 52:8 67:768:7,8,9 77:792:22 102:20103:19,21 104:5116:2 131:14183:10 187:3
dates 11:6,9 12:350:14,22 52:985:15 102:17
day 7:7 12:20 15:943:5 50:12 79:1493:14 122:9 132:8143:13 145:1169:13 186:17198:10
days 63:19,21 65:265:3 67:9 86:1392:8 107:17144:15 145:6146:5 152:3157:15,20 169:13169:19 175:9,14177:19 205:10,12206:14 207:2,3,22214:2
day-to-day 174:12175:2
DCRA 54:3deal 20:19 80:7
91:19dealing 48:5 54:6
54:10 58:15 63:8dealings 59:1deals 81:2dealt 107:6 212:2DECEMBER 1:13decibel 202:14
203:3decibels 203:5decide 20:10
153:15decision 138:21
212:7deck 32:14,17 33:2
33:5,7 34:3 49:13decreased 132:10deemed 142:11defend 68:16defining 199:8definite 206:13definitely 130:18degree 199:19
200:2deliberate 212:8deliberating 213:2delicate 118:19delivered 42:6,9demonstrates
82:16deny 148:6,19departure 209:14dependent 196:1descended 93:16describe 115:9
153:8,9 155:3,9205:3
described 123:16206:13
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112:13,22 115:17determine 56:7
106:1 107:2 108:2108:16 120:2
determined 110:11
device 115:16devices 124:17
125:3difference 162:2
192:20differences 193:2different 78:15
90:21 124:20127:19 197:16206:9
difficult 96:5direct 47:5 158:2,3
209:2direction 37:3directly 127:20disagrees 144:8disconnect 186:18disconnected 8:14
167:9,14disconnecting
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50:21 51:1,1282:19
discussed 14:2136:16 50:18 85:1786:17 144:12179:19,21
discusses 11:8discussing 15:1
105:7discussion 15:16,17
16:7 44:8 54:2183:22 158:11
discussions 52:1673:12 120:1204:16
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7:3 12:2 17:338:12 40:19 45:2253:15 66:16 85:14101:11 144:8146:18 158:9,13158:22 203:19206:17,18 210:4211:12,17 212:20
disturbance 117:17disturbances 105:9disturbed 91:19disturbing 163:9DJ 29:6 120:7
121:12,13 134:3179:5,8,9,12188:5,6,9 189:2189:18 195:7,9,15196:15,22 198:19
DJs 119:15 123:17124:12 188:13189:7
DJ's 194:11 196:1196:11
document 10:2111:2,7 24:1479:10 80:10 81:1281:14,16,17 84:384:10 85:13 86:187:3,6 95:21204:15 208:6
documentary205:11
documentation13:7
documented 2:1586:18 205:17,19
documents 16:1679:14 83:3 208:13
doing 40:2 134:3152:18 189:14
domicile 202:17DONALD 1:19door 112:7 152:6
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196:16employed 44:22
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153:1,14 170:16171:3 180:6,13185:16 188:21191:14 197:19198:17,19 199:9199:14,17 200:6,9200:12,13,14
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106:20ensuring 168:22enter 80:14entering 79:17 81:1entertainment 35:4entirety 109:13entries 80:18 92:22entry 99:7environment
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establishment's85:18 125:1 129:6
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132:2 177:3,4190:18
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155:9 173:20174:1 187:2 199:1
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22:3 24:7,8,9,1427:13,16 28:529:18 36:16,17,1837:18,19 38:8,1038:12,14,17 39:139:8 40:7,15,1940:19,19 41:2042:12 43:12 48:2150:2 66:14,1585:14 86:19 92:1392:13,17,21 95:12103:7 109:3,8,8115:8,10 116:2,6116:6 120:15,16120:19 121:2,8154:21 155:16,18155:20,21 157:18
exhibits 2:9 10:814:15 38:1,6,1138:21 40:18 41:2100:3 102:16103:9 114:22115:6,8 122:21154:18
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experienced 66:3129:22 132:12
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