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From the Forum – Can a Restaurant Turn into a Nightclub Later in the Night?

by Prince Of Petworth February 20, 2014 at 2:15 pm 48 Comments

Photo by PoPville flickr user Laura_Grageda

Can a Restaurant Turn into a Nightclub Later in the Night?

“We moved into a condo building with a nice Italian restaurant on the 1st floor. We knew there might be some noise from the street and otherwise associated with the restaurant when we moved into the city and into the building. It’s been a few months since the restaurant opened and now, after 10 pm they bring in a DJ and pump up the music – it’s loud, especially the base, and we get the “thump thump” in our unit. We were not aware that they were going to be operating a nighclub in the restaurant. We wouldn’t have bought in the building if we had known. So now we are wondering about our options. We’ve tried to be reasonable and communicate with the restaurant and sometimes they turn down the volume and other times they don’t (and we only say something if it goes on later than 11 am and we don’t ask them to turn it off – just to turn down the bass.) Can a restaurant in DC turn into a nighclub after hours? Are there licensing restrictions? Are there noise ordinances? Anyone deal with a similar experience? Any help/advice would be appreciated.”

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  • annonny

    Oh geez, this is horrible. I once lived above a “thump, thump, thump” place for a summer and it was awful, so you have my sympathies. If this is a condo building, shouldn’t there be some sort of house rules governing noise? Or perhaps even better a lease between the restaurant and the condo association? I’d first ask for help from the condo board since it seems they should be able to exert pressure on the restaurant. And if that doesn’t work, contact a real estate attorney. This situation appears like it should violate some kind of right of habitability, but a lawyer would be best able to make that determination.

  • Anonymous

    They likely have a Settlement Agreement with your local ANC. If there is an agreement, it should stipulate things like hours and noise and remedies. You can also check their license to see whether or not they have an entertainment endorsement affiliated with the liquor license, which would be necessary for any DJ. You can look up their license thru ABRA (abra.dc.gov).

  • Anonymous

    Ask Sticky Rice

    • The Real Jason

      Sticky Rice is one of the few places that get it right. I suppose you could mention Wonderland Ballroom in that elite few as well. Though I doubt many people go there solely for the cuisine.

  • Anonymous

    Boots and pants and boots and pants and boots and pants and…..

    • Anonymous

      i crack up everytime I see that commercial.

  • Sunsquashed

    This exact problem happened to us when The Getaway started hosting dance nights (although the noise from the Dunes was always much worse). The only real solution is to contact ABRA. Part of the liquor license should include promises to not violate DC noise ordinances (which are surprisingly strict). The above comment about having an entertainment license is correct as well (as far as I know). If they don’t have this type of license, and you can document noise coming into your house, you should have a case, but you need to be VERY aggressive. Most city agencies (outside ABRA) don’t give a crap about noise complaints.

  • Anonymous

    What the restaurant don’t be shy.

    • JS

      I’m guessing it’s M Cafe/Bar in the Aston or by Ghibellina.

      • Anonymous

        Is Ghibellina loud? I’ve not noticed a DJ there.

        • JS

          No – I was just basing it on “italian restaurant” and the fact that the poster seems new to the city. I couldn’t think of too many “nicer italian” restuarants with housing nearby but on further reflection is seems like it’s got to be M cafe.

  • Ryan

    I rented in a building with a rooftop nightclub. The property manager said that I would not be able to hear the club at night. The apartment was great and in an awesome location.

    Well I could hear every thump of the bass every night. I lasted five days. Plopped my keys down and told them they were violating my basic rights as a tenant. They quickly allowed me out of my lease with no penalty.

    Check your deed to see if there is a covenant of quiet enjoyment. Also, reference this court case: 1 W. 62 Owners Corp. v CGM EMP LLC

    You have some leverage here. Good luck.

    • Ryan

      Typo: It’s 61 W. 62 Owners Corp.

    • I’m surprised they let you out of the lease. I would have said “too bad, you could have come at night to hear the noise before signing a lease.” If you determine a “great location” to be in the vicinity of food and entertainment venues, guess what – there is going to be noise, traffic, bad parking, lots of pedestrian traffic, crime, trash, and may not be the place to live if you also want complete privacy.

      • Anonymous

        complete privacy and noise while you’re trying to sleep are two different things.

      • Ryan

        The covenant of quiet enjoyment requires the landlord to provide the tenant quiet enjoyment of the premises. This covenant applies even if it is not in the lease. The landlord allowing a bar/club to blast music with tenants living below blatantly violates this covenant.

        Plus, how am I supposed to come test the noise when the building is secured at night with security?

        Crime, traffic, bad parking? That is out of the landlord’s control. I live in Chinatown now and deal with trash trucks at 5:45 in the morning, police sirens, etc. All worth being able to walk nearly anywhere.

        • Anon

          “Quiet” doesn’t mean what you think it means. In the legal sense, “quiet enjoyment” means that you can enjoy full use of the transferred premises without competing claims of ownership or the right to occupy the same space. It doesn’t mean that the volume is low. That said, I do sympathize with the OP here.

    • Anonymous

      Which residential building has a nightclub on the roof?!?!

      • Anonymous

        i dont think there are any in dc.

  • Anonymous

    I feel for you. Italian nightclubs are especially bad to deal with, because their taste in music tends to be really, really bad.

  • shawguy

    If they have an Entertainment Endorsement on the liquor license, then yes, they pretty much can turn into a nightclub at night. These places have caused problems in the past – Heritage India in Dupont used to do that, and kept it up until they had a quintuple shooting with a fatality over Thanksgiving weekend in 2011.

    The license has to come up for renewal every three years. You’ll have to protest the license to try to strip away the Entertainment Endorsement – that’s the part that allows them to turn into a nightclub. Be forewarned, however, that ABRA will usually rule against the resident and in favor of the business and let them keep it. Your best bet is to file noise complaints with ABRA often – only about 5% of complaints get adjudicated, the rest just get lost. Call ABRA and request a copy of the Settlement Agreement that is in place for the establishment, read it, and write the owners a letter detailing the violations, if there are any.

    Best of luck – I fought a similar situation for three years before finally getting any change. It might be easier to move.

  • alpinepaq

    OP – what is the restaurant in question?

    • Anonymous

      I’m not the original poster, but I also live in the building and can vouch for the fact that M Cafe is exceedingly loud and unresponsive when asked to be considerate of neighbors. According to the ABRA filings, they do not have an entertainment endorsement and therefore I will be filing a formal complaint with them as well.

  • MDH1986

    For those asking, the original forum poster signed off as 14andR, which I believe is M Cafe? Might be wrong.

    • Based on previous impressions from PoPville about that place I wouldn’t be surprised. It seems to be a cesspool of bad business decisions.

    • Logan_Circle

      That must explain how this place has managed to stay in business despite the fact that I rarely see people dining there.

      • Anonymous

        Seriously, I also thought the same thing! Nice space, but it appears to be fairly empty most of the time. WTF?

  • Anonymous

    Alero on U Street has been doing it for years!!

    • occasional DJ

      Do they not have an entertainment endorsement on their liquor license? I used to DJ there.

  • bb

    There is an ABRA noise complaint hotline. They have someone on duty until at least an hour after all places with liquor licenses are closed. They will come out with sound equipment and measure the decibel level in your house. Note, however, that you only have “standing” to contest a liquor license if you are immediately adjacent to (that is, you share a wall with) the establishment. I live across the street from a loud non-nightclub nightclub, and getting something to happen through the official process has not been easy. You have to follow up regularly.

    • ShawGuy

      There is, in fact, an ABRA after-hours noise complaint hotline. It’s 202-329-6347. Someone is on duty until 3:00am Sunday-Thursday and until 4:00am on Friday and Saturday. They can send an ABRA inspector out to your house to verify the noise inside, and then file a report. From my experience, however, the overwhelming majority of complaints go nowhere – you never hear anything about it again. So, keep a detailed record of your calls and of problems with the establishment. It’ll help considerably if you ever actually get an adjudication hearing. Good luck!

  • Annon

    They have to have a club license. I doubt they have one. I suggest you contact Jack Evans office immediately. And the ANC. They can’t help if they don’t know about it. Get all your neighbors to write him as well and call the police. Document everything including contact with the restaurant and police.

    • Not necessarily. A place with a restaurant license like M Cafe can still operate kind of like a nightclub w/o a nightclub license but without an entertainment endorsement it can’t have live music or a DJ or even dancing; it can’t charge a cover without a cover charge endorsement. It also has to serve food for two hours until closing and have 40% food sales.

      • Anonymous

        How can the percentage of food sales be regulated? If they have lots of lousy food available, but people ignore it in favor of buying lots of good drinks, does that in some way violate a license? The other stuff is well within the control of the restaurant, but percentage of a specific type of sale would seem to be more variable.

  • MiddleOfNowhere

    We dealt with some thing similar. Steps we took to try to remedy the situation was working with the condo board, if you have one governing board over both the residential and commercial, ABRA, and our council member. ABRA may be able to verify the noise issue, write up a report and issue a citation if the restaurant is found in violation. Check their license and if they have an entertainment endorsement – make sure you have a copy of their license when you call ABRA – they may not understand what they can or cannot do. I would also check to see when the restaurant’s license is up, and protest it, which you can do if you abut. I would talk to your neighbors and see if they are also bothered – the more of you there are, the better your chances of getting change. Ultimately, however, for us, no one was really helpful. ABRA is essentially pro-business and wasn’t terribly inclined to do anything about the situation. Also, there is no special governing law for mixed-use buildings on noise insulation, so restaurants are not obligated to add additional insulation if there will be additional noise. For us, after a few years of stressful evenings and sleepless nights, we sold our condo and moved. Be forewarned – when you complain, people tell you to move to the suburbs/West Virginia, that you can’t handle the noise. Yup, I can’t handle the noise when it’s bass for hours on end – no one really understands until they hafta live with it. If there’s any other information you need, or to discuss strategies, let me know. might as well share what we learned over the years.

    • textdoc

      “Be forewarned – when you complain, people tell you to move to the suburbs/West Virginia” — If the OP has been reading PoPville, he/she is probably already familiar with that dismissive response from certain PoPvillagers. ;)

  • Anonydude

    If the restaurant is M Cafe or any other restaurant in the 14th and U St corridor, you are somewhat screwed. That area is listed as an “Arts Overlay” commercial zone. This means that some existing laws and regulations have been overlaid with more commercial-friendly laws and regulations. For example, in a standard condo or apartment, there are somewhat strong noise rules that you can use to get your neighbor to be quiet. BUT, if you are in the Arts Overlay and live in a mixed-use building (i.e. business on the first floor and apartments above), those rules have been replaced with less restrictive ones. A restaurant in a mixed-use building has the same noise regulations as a bar in an industrial zone with no one living within a mile of it.

  • Manamana

    Lots of good suggestions here. I’d just add that in this situation, the club/restaurant is a tenant in the building. The condo bylaws must empower the board to adopt rules that would apply to all the units, both residential and commercial. The board should consult a good lawyer, adopt sensible rules that would include not blasting noise into neighboring units at night, and start issuing hefty fines. You might get action out of your condo board before you get action out of ABRA. Good luck!!

    • Anonydude

      Unless the condo has separate boards and bylaws for commercial and residential (which most newer buildings have). If this is the case, there is almost nothing the residential board can do without the commercial board’s consent. And if the commercial board includes either the club/restaurant or the developer who is getting rent from the club/restaurant, there is little incentive to appease the residents.

  • Andielynne

    We are currently having a similar noise issue with a full-fledged nightclub (Flash Bar) in DC. Somehow, even though the establishment is located right next to a residential area, not to mention a hospital zone, ABRA issued them a 24-hour operational license. We called ABRA multiple times, and were told that they would send an inspector out to stand IN OUR BEDROOM to attempt to determine if the noise was too loud. When I asked, they indicated that they do not use any instruments to measure the decibel levels, but rather they would come out to the house at the time I felt it was noisiest, would call the bar and ask them to turn it up to their highest level, and then they would base their decision on what they felt was acceptable. After repeated calls to the DC Police re: noise violations, I was told by a police officer that ABRA will always support the business in question, and that my best bet would be to address the issue with the Zoning Commission, who takes a much more proactive stance on protecting the rights of individuals and homeowners. We’re still fighting the battle, and I’d love to hear if you find something that works for you. Good luck!

    • Anonymous

      Where do you live in relation to Flash? I go to the club frequently and always thought that they did a pretty good job of insulating the sound, at least from the street frontage. I know a bunch of people who work there (including the head sound guy), so I’ll let them know. They might need better insulation on the front or sides of the building.
      I do know that they spent a metric F#CKTON of money on insulating and calibrating the space for acoustics during the build-out. They don’t want any sound to escape, as it distorts sound clarity and quality. It really is one of the best and finely tuned sound systems in the country.

    • Anonymous

      Also, the block Flash is on is zoned for heavy commercial/light manufacturing (C-M-3). I don’t think you’re going to get much help from the city agencies.
      “Permits development of high bulk commercial and light manufacturing uses to a maximum FAR of 6.0, and a maximum height of ninety (90) feet with standards of external effects and new residential prohibited. A rear yard of not less than twelve (12) feet shall be provided for each structure located in an Industrial District. No side yard shall be required on a lot in an Industrial District, except where a side lot line of the lot abuts a Residence District. Such side yard shall be no less than eight (8) feet.”

    • Anonydude

      ABRA’s inspectors do not have sound/decibel measuring equipment. There is no way for ABRA to legally verify the sound level and provide any sort of enforcement based on noise laws.

    • Anonydude

      Flash Bar is in the ARTS Overlay. See a map here: http://www.borderstan.com/06/14th-u-approval-for-more-bars-restaurants-expected/uptown-arts-overlay-district/.

      Regardless of their location to a residential zone, Flash Bar only has to obey commercial noise laws. Considering the DC Gov’t just went through a massive zoning adjustment and did not address this issue, I doubt they will do much about your issue.

      • Anonymous

        They are just across the street from the Arts Overlay, not inside it. Still, as you said, they only need to conform to commercial noise regulations. They are actually at least 150-200 feet from the nearest residential zoned block.
        That’s why I asked where Andielynn lived – she couldn’t possibly live next to Flash and to the rear of Flash is Howard University Hospital facilities. If she is living next to Flash, my guess is that she’s in an illegal apartment that not zoned for residential use.

  • 14andR

    An update. Apparently the police were called (citing the DC noise ordinance) and playing loud music is in violation of the lease. We heard that the restaurant manager was very apologetic and has said that they will discontinue the DJ music altogether. First time posting in this forum – you all are amazing with the advice. Much appreciated.

  • The DC Noise Control Act requires businesses to contain amplified sound, but his law has not been enforced. Our DC Nightlife Noise coalition is working with ABRA and other agencies to enforce the law. The Mayor’s office has just informed us that the administration will improve enforcement. Bottom line: your restaurant is violating the noise act. Please look at our web site for resources on the law. We are happy to talk to you offline to help with your problem.

  • Anonymous

    They don’t have an entertainment endorsement, so shouldn’t be playing music that loudly. Contact your ANC representative – http://www.anc2f.org/contact/.

    You’re going to need to file a complaint with ABRA and with the restaurant. ABRA can come take a noise measurement, which you’ll need to force M Cafe to comply.

    The Settlement Agreement for M Cafe: http://abra.dc.gov/sites/default/files/dc/sites/abra/publication/attachments/1634%2014th%20Street%2C%20NW%208-1-2012.pdf


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