The operators of The Big Board (421 H St. NE) are suing Advisory Neighborhood Commission (ANC) 6C. Flannery v. Eckenwiler was filed Sept. 25 in US District Court. The suit names six commissioners who served on ANC 6C from 2022-23.
The lawsuit cites the First Amendment, claiming that the commission protested the renewal of the restaurant’s liquor license “to punish and harm Plaintiffs, without a valid basis, in retaliation for Plaintiffs’ expressed views.”
Lawyers for The Big Board call the suit against ANC 6C “an important constitutional rights case.”
They argue that whatever the phrasing in the official protest document, the ANC 6C protest of The Big Board’s license renewal was actually taken in retaliation for The Big Board owner Eric J. Flannery’s opposition to the District’s pandemic-era mandates. That, they argue, violates Flannery’s First Amendment rights.
The plaintiffs seek attorney’s fees, “which are substantial,” as well as punitive damages, wrote David Tryon of the Buckeye Institute, a conservative think tank out of Columbus, OH representing the Big Board in the case. “Any settlement discussions would be private,” Tryon added.
The protest was unanimously supported by ANC 6C at a Nov. 9, 2022, meeting and was withdrawn by the ANC on March 8, 2023.
“The claims are for First Amendment retaliation by public officials,” explained Tryon. The six defendants named in the case were elected representatives of ANC 6C during the time of the protest. Named in the suit are Mark Eckenwiler (ANC 6C04, Chair); Joel Kelty (6C05, treasurer) and Jay Adelstein (6C03), who were re-elected to office. Also named in the suit are three commissioners who stepped down at the end of 2022, including Karen Wirt (formerly 6C02), Christine Healey (formerly 6C01) and Drew Courtney (formerly 6C06).
Background
The Big Board made national news after it had its liquor license suspended and was forced to close by the DC Department of Health (DOH) in late January 2022. At the time, the city had vaccine and mask mandates in place related to the COVID-19 pandemic. The restaurant had been fined twice and warned repeatedly after it violated Mayor’s orders requiring employees to be masked and for staff to check customer vaccination status.
The restaurant reopened in March after paying $4,000 in fines with the proceeds of a crowdfunding campaign that raised tens of thousands of dollars. The Big Board’s stance was celebrated by conservatives critical of vaccine mandates, including Senator Rand Paul (R-KY), who reportedly dined at the restaurant the day it was shut down by DOH.
Later that year, in October 2022, The Big Board sued the District, alleging that the Mayor and DC Council lack the legal authority to make mask and vaccine requirements without the approval of Congress. That case is still pending; the District has filed a motion to dismiss. The Buckeye Institute has represented the restaurant in all three cases.
That same month, The Big Board applied to renew their liquor license, which was granted by the District’s Alcoholic Beverage Regulation Administration (ABRA, now the Alcohol and Cannabis Regulation Administration, ABCA).
Like many other commissions, ANC 6C has made a practice in recent years of seeking a Settlement Agreement (SA) with food and beverage businesses. An SA is a type of contract between the applicant and the ANC on behalf of the community that addresses neighborhood concerns such as trash, parking and noise. Those familiar with general procedure say ANC 6C generally uses the same template as a starting point for SA negotiations with businesses.
ANC 6C voted unanimously to protest the liquor license renewal at the Nov. 9 meeting of the full commission. In a letter sent to ABRA, commissioners cited three reasons for the protest: the impact of The Big Board on property values, peace order and quiet, and on noise and litter provisions. By law, opinions of the ANC must be given great weight by District agencies.
Grounds for Protest
Prior to the Nov. 9 vote to protest, then-ANC 6C06 representative Drew Courtney asked for clarity.
“Can I ask on this one, again, just kind of what’s the thinking here?” Courtney asked commissioners just prior to the vote. “‘Cause I know, I believe, Commissioner Eckenwiler had some public space concerns; I also know that this is an establishment that has displayed bad behavior in recent years.”
Eckenwiler, who represents ANC 6C04, replied. “The concerns that I have go toward the improper public space occupancy,” he said.
Eckinwiler did not respond to requests for comment. But sources familiar with ANC 6C proceedings say that concern had been expressed about the restaurant’s use of sidewalk-adjacent public space to store bins for trash, grease and linen. Similar concerns with the business next door, Sidamo Coffee (417 H St. NE) were addressed in a 2018 Settlement Agreement with the ANC.
However, court documents filed on behalf of The Big Board argue that the ANC protest was premised on false claims. The suit alleges that more was said on the topic at a meeting of the Alcohol Beverage Licensing (ABL) Committee on Nov. 7, 2022 —two days prior to the vote by the full commission.
According to the suit, “At the November 7, 2022, meeting, Mr. Eckenwiler stated that The Big Board’s license should be revoked because, ‘I mean just some of the things he’s said publicly, we should go ahead and protest the license’.”
“The ANC 6C claims that no meeting notes or recordings exist for that November 7, 2022, meeting,” lawyers allege in court documents. “So, if that meeting was recorded, as indicated in the Webex invitation, it was destroyed, i.e., spoliated.”
The suit further points to statements made by Eckenwiler on a personal social media account that lawyers for The Big Board argue “showed his disdain for Mr. Flannery’s expressed views and his animosity and animus towards Mr. Flannery.”
What Next?
The current and former commissioners named in the suit either declined to comment or could not be reached. The Office of Advisory Neighborhood Commissions (OANC) said that it would not comment on pending litigation. The Office of the Attorney General (OAG) did not respond to repeated requests for comment.
All commissioners are being sued in their personal capacity.
But former Executive Director for OANC Gottlieb Simon said that while the commissioners must apply for representation, he would be surprised if they were not represented by DC OAG in the case. That’s because the suit turns on actions undertaken in their official capacity.
“I am perplexed as to why they [The Big Board] think they have a case given that what the commissioners did was manifestly, obviously, clearly and unarguably an action that they took in their official capacity,” said Simon.
Big Board representative Tryon said the claim is being made under a section of US Code allowing civil action for deprivation of rights. “That statute requires bringing a suit against public officials in their personal capacity when they violate their duties as public officials,” Tryon said.
A lawyer with decades of experience in First Amendment law said these sorts of cases are filed all the time. He said whether the case has legs will turn on the facts. If there’s evidence that the restaurant was singled out or punished based on what they were saying, there could be a case. But, he cautioned, that is different than being in violation of the law and then being punished for that violation, a situation that can exist completely apart from protected speech.
Another case may play a role here as well, experts note.
On Oct. 31 the US Supreme Court will hear O’Connor-Ratcliff v. Garnier. In that case, two school board officials allegedly blocked people from following their social media accounts. The case considers whether, in so doing, those officials engaged in state action subject to the First Amendment —i.e., whether those private accounts are public.
That case could have some bearing on the interpretation of statements made by a public official, he said, even those made from a social media account created for private use. That could affect the way lawyers for The Big Board tries to present the tweets made by Eckenwiler.
The case has been assigned a judge in DC District Court, but a hearing date has not yet been set.
