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O Street clubs running out of time
Orange rallies against gay businesses, as stadium OK'd

By LOU CHIBBARO JR
Friday, February 10, 2006


Gay entertainment businesses threatened with displacement by a new baseball stadium received a double blow Feb. 7 when the D.C. Council approved a lease clearing the way for construction of a Major League Baseball stadium after gay Councilmember Jim Graham withdrew a bill aimed at helping the gay clubs move to a new location.

Graham said he withdrew his bill after learning that the Council did not have authority to change zoning regulations that prevent sexually oriented businesses from moving any place other than the central business district and nearby streets.

He said his bill was based on incorrect information received from city regulatory officials who led him to believe changing the city's liquor law could clear the way for the O Street gay clubs that offer nude dancing to move to a zone similar to the one in which they are now located.

Under provisions set by the D.C. Charter, which Congress wrote in the early 1970s, the D.C. Zoning Commission rather than the Council has the sole authority to write or change the city's zoning law and zoning regulations. Although the Council has authority to change the liquor laws, Graham said it is powerless to change zoning-related matters.

The five-member Zoning Commission consists of three members appointed by the D.C. mayor, one appointed by the U.S. Secretary of the Interior and one appointed by the Architect of the U.S. Capitol. Graham joined gay activists in calling on Mayor Anthony Williams to petition the commission to change zoning rules to allow the O Street clubs to find a suitable place to relocate.

"Assuming these licenses are sexually oriented businesses, I am now informed that there is nowhere in the District where these licensees may move as a matter of right," Graham said in a Feb. 7 statement. "Indeed, the zoning regulations prohibit them from transferring anywhere except to the central business district and nearby areas."

But Graham said the current zoning law does not automatically allow such businesses to locate in the central business district. It requires sexually oriented businesses to first obtain a "use variance" from the city's Board of Zoning Adjustment, something the board often refuses to approve.

Gay business owners have said excessively high rents and restrictions against operating near residential buildings would likely make it impossible for them to move to the central business district, even if they were to win a zoning variance.

Graham had planned to introduce his bill in the form of emergency legislation during the same Feb. 7 Council session that debated and approved the stadium lease.

"Today I am withdrawing the emergency legislation to get to the bottom of this," he said in his written statement. "I will be working with the zoning administrator, the Alcoholic Beverage Regulation Administration, and the Department of Consumer and Regulatory Affairs to find a solution."

˜Undesirable' businesses

Graham's decision to withdraw his bill came less than a week after Ward 5 Councilmember Vincent Orange and Ward 5 community leaders voiced strong opposition to the bill on grounds that it would open the way for "undesirable," sexually oriented businesses to flock to Ward 5.

Orange, who is running for mayor, called on Ward 5 residents to demand that the Council defeat Graham's bill after he discovered that gay businessman Bob Siegel planned to open one or more adult gay businesses displaced by the stadium in a vacant warehouse on Mount Olivet Road near West Virginia Avenue.

Civic activists in Ivy City, the neighborhood where the warehouse is located, said the warehouse is in close proximity to an elementary school, two youth centers and a high concentration of homes.

Graham this week insisted his decision to pull his bill was "absolutely unrelated" to opposition from Orange or other Ward 5 leaders. He said his bill did not target Ward 5 or any other ward, saying that its intent was only to allow the businesses displaced by the stadium a chance to move to other locations.

Graham said he later told Seigel that the warehouse Seigel was interested in was less than 600 feet from residential buildings and could not obtain a license to operate under zoning or liquor laws, even if the Council had approved Graham's bill.

The stadium lease approval came after the Council initially voted 8-5 to defeat the proposed lease, which would allow the Washington Nationals to use the proposed city-financed stadium. The Nationals play at RFK Stadium.

In a dramatic reversal, the Council voted 9-4 to approve the lease at 12:40 a.m. Feb. 8, following a marathon session that included several hours of private meetings. Graham and gay Councilmember David Catania were among those who voted against the lease on grounds that it contains loopholes that are likely to saddle the city with large cost-overrun expenses.

Williams and Council Chair Linda Cropp disputed claims by opponents that the lease would subject the city to cost overruns. The two said the approval marked an historic compromise that, if approved by Major League Baseball officials, would clear the way for stadium construction to begin in the next few months.

Time to start packing

Last month, D.C. Attorney General Robert Spagnoletti, who is gay, filed a motion in D.C. Superior Court asking a judge to order all occupants on the stadium site to be evicted by Feb. 7 under the city's eminent domain law. Judge Joan Zeldon did not act on the motion as of late this week, but city officials say they expect an eviction order shortly.

Tracy Hughes, a spokesperson for Spagnoletti, said the office issued eviction notices to all property owners and occupants two months ago. She said the court has already transferred the ownership of the property on the stadium site to the city and that the process cannot be reversed.

"If the stadium deal falls through for whatever reason," Hughes said, "the land remains in the sole possession of the city."

Hughes said her office would try to work with the O Street businesses and other occupants on stadium property to allow them to vacate the properties in an orderly fashion.

D.C. attorney Andrew Kline, who represents the O Street gay nightclub Heat, said Graham might have acted too hastily in his decision to withdraw his bill. Kline said the zoning restrictions pertaining to sexually oriented businesses do not automatically cover bars or nightclubs that offer nude dancing.

According to Kline, the zoning regulations require a two-pronged threshold before zoning officials take action against a nude dance establishment: the performance must include nudity and must also include real or simulated sexual acts, either in a live performance or in video, film or photographic depictions.

"Nudity by itself does not meet the definition of a sexually oriented business under the zoning law," Kline said.

He said Graham's bill could have helped Heat and other nude dance clubs by easing the liquor law restrictions that now prevent them from moving to a new location.

Graham said he would consult experts on city laws and regulations to determine whether to introduce another version of his bill.