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Flannery v. Eckenwiler |
For media inquiries, please contact:
Lisa Gates, vice president of communications
(614) 224-3255 or Lisa@BuckeyeInstitute.org
Background on the Case
Key Question in the Case: Did the defendants—who are current or former advisory neighborhood commissioners for ward 6C in the District of Columbia—conspire to protest the renewal of The Big Board’s liquor license in retaliation for Mr. Flannery’s public positions opposing the district’s pandemic-era emergency orders.
Beginning in March 2020, D.C. Council issued a series of 90-day emergency amendments, and Mayor Muriel Bowser began issuing rolling emergency orders. Specifically relevant to this case, in late December 2021, the mayor issued orders requiring that restaurants impose the city’s mask mandate and check customers’ vaccination status beginning in mid-January 2022.
Eric Flannery, a proud Navy veteran and co-owner of a neighborhood bar and grill, The Big Board, refused to become an agent of the government and instead tweeted out that “everyone is welcome” at his local tavern. D.C. government’s response was swift and aggressive. The government suspended The Big Board’s operating and liquor licenses and forced the place to close—indefinitely. After weeks of protracted negotiations, The Buckeye Institute and Eric finally won a hard-fought victory, and The Big Board was ultimately able to reopen.
Unfortunately, D.C.’s harassment of Eric did not end there. D.C. Department of Health then sought to levy additional fines related to the initial “violation” of pandemic regulations to penalize him further. Eric challenged those fines, and an administrative law judge ruled in his favor on October 11, 2022.
Not only did the city try to intimidate Eric, but members of his Advisory Neighborhood Commission (ANC 6C) conspired to protest the renewal of The Big Board’s liquor license in retaliation for Eric’s public position opposing the district’s pandemic-era emergency orders and for what one of the defendants claimed was Eric’s “bad behavior in recent years.” All defendants agreed to protest the liquor license renewal, not for a legitimate reason—which is allowed by law—but to punish Eric because he spoke out against D.C.’s shutdown orders.
But even before they conspired to oppose the renewal of The Big Board’s liquor license, members of the ANC 6C made their opinion of Mr. Flannery known, particularly Mark Eckenwiler.
In October 2022, when Mr. Flannery requested a renewal of The Big Board’s liquor license, the ANC 6C members began to organize their baseless protest. At one public meeting, Mr. Eckenwiler allegedly said the city should revoke The Big Board’s license because, “I mean just some of the things he’s said publicly, we should go ahead and protest the license.” None of the other commission members was heard disagreeing or challenging that statement—a statement that clearly demonstrated that the protest to the license renewal was groundless.
But the ANC members moved forward with baseless claims on which to file their protest. The members claimed that The Big Board’s operations have had a negative effect “on real property values;” The Big Board had a negative impact “on the peace, order, and quiet, including the noise and litter provisions set forth in Section 25-725 and 25-726 of the D.C. Code;” and that The Big Board had a negative “effect upon the residential parking needs and vehicular and pedestrian safety.”
Throughout the license renewal process, Mr. Eckenwiler did nothing to offer any support that legitimized the ANC 6C protest, and in an Alcoholic Beverage Regulation Administration-ordered mandatory mediation call, Mr. Eckenwiler said he attended the call as required and immediately hung up without so much as waiting for a response from the mediator.
The ANC 6C protest was so contrived and unfounded that a February 2023 ABRA investigation found nothing to support the claims in the protest. The report said:
“ABRA investigators monitored The Big Board on eight (8) separate occasions from February 16, 2023, until February 28, 2023. No ABRA violations were observed during these visits,” including, “[n]o [p]eace, order and quiet issues, no loitering, no trash or parking concerns.” “During these monitoring efforts, [ABRA] did not observe issues with vehicular and pedestrian safety, in the vicinity of The Big Board. No pedestrians were observed exiting The Big Board in an intoxicated state That [sic] would have caused issues for other innocent by standers or vehicular traffic, on H Street, N.E.”
Following Mr. Eckenwiler’s refusal to participate in the mediation and after the ABRA investigation, the ANC 6C withdrew its protest to The Big Board’s liquor license renewal.
The six defendants in the case made up the membership of the 6C Advisory Neighborhood Commission during the time in question and are all being sued in their personal capacity.
About Buckeye’s Client
Eric Flannery’s father, Rear Admiral Gerard Flannery, Jr., was always a bit of a gourmand, and his sons inherited their dad’s love of both good food and service. In 2011, Eric, together with his brothers Mark and Doyle and longtime friend Dave, turned that love of food and service into a business and opened The Big Board, a popular neighborhood bar and grill in our nation’s capital.
Armed with the Rear Admiral’s special marinade, The Big Board became one of D.C.’s top burger spots—that is until the District of Columbia suspended its operating and liquor licenses and forced it to close.
As Americans witnessed and experienced, cities nationwide imposed specious mask and vaccine verification mandates upon individual citizens and business owners alike. The District of Columbia was one of the worst, as it imposed upon small business owners, like Eric, to check the vaccination status of their customers and forced them to impose absurd mask mandates that had unmasked guests seated and drinking on one side of a bar while masked employees stood on the other side of the same bar. Frustrated with these ludicrous rules, Eric said he would welcome anyone to enjoy his great burgers and beer selection.
The District of Columbia had other plans for him.
On the same day, Washington D.C. Mayor Muriel Bowser announced that D.C. businesses would no longer be forced to check the vaccination status of guests and that the mask mandate would end. The District of Columbia nonetheless affirmed the suspension of The Big Board’s liquor license, which meant Eric’s business—and with it his entire livelihood—would continue to be closed down for not enforcing contrived mandates that the city itself had already ended.
Facts of the Case
Current Status
The Buckeye Institute filed its notice of appeal with the U.S. District Court for the District of Columbia on October 29, 2024.
Case Number
24-7168
Originally Filed
September 25, 2023
Original Court
United States District Court for the District of Columbia
Plaintiff
Eric J. Flannery, co-owner of The Big Board
Lawyers
Robert Alt, president and chief executive officer, The Buckeye Institute
David C. Tryon, director of litigation, The Buckeye Institute
Jay R. Carson, senior litigator, The Buckeye Institute
Alex M. Certo, legal fellow, The Buckeye Institute
Patrick Strawbridge, Consovoy McCarthy PLLC
David L. Rosenthal, Consovoy McCarthy PLLC
Related Case
Flannery v. D.C. Department of Health
Timeline of the Case
October 29, 2024
The Buckeye Institute filed its notice of appeal in Flannery v. Eckenwiler with the U.S. District Court for the District of Columbia.
September 30, 2024
Although the court found the “allegations concerning the flimsy and unsupported nature of the protest quite troubling, and it has not determined that it would find public officials to be immune to claims that they knowingly initiated an effort to have a state-issued license revoked on frivolous grounds,” the U.S. District Court for the District of Columbia granted the defendants’ motion to dismiss Flannery v. Eckenwiler.
December 20, 2023
The Buckeye Institute files its memorandum opposing the defendants’ motion to dismiss Flannery v. Eckenwiler.
September 25, 2023
The Buckeye Institute files Flannery v. Eckenwiler with the United States District Court for the District of Columbia.
