Council's Public Safety Bill Receives Final Vote of Support, Restaurant Revitalization Measure Also Moves Forward • Council of the District of Columbia

No issue has received more attention or galvanized public opinion in recent days than has public safety. At its most recent Legislative Meeting, the Council passed an umbrella public safety measure in the second of two needed votes. The bill now heads to the mayor, who oversees the District’s public safety agencies, for her expected approval. (Though the Council writes laws, and funds them, it neither enforces them nor prosecutes their violation.)

The much-discussed Secure DC bill, which passed with an identical vote at our last Legislative Meeting, is what is called in legislative parlance an “omnibus” measure since it incorporates all or portions of a dozen prior measures. Every councilmember had either introduced or co-introduced one or more of the twelve bills that made their way into the overarching Secure DC bill. The final bill had over 100 provisions. The goal of the measure was to respond to the public’s clear call for action to improve public safety in the District while avoiding measures that would not provide actual, measurable positive results. The bill passed with no votes in opposition.

The bill made permanent a number of measures that the Council had previously approved on an emergency or temporary basis. Conversely, the Council passed a parallel, emergency version of the Secure DC bill that ensures that all cost-free new provisions of that newly-passed bill can go into effect immediately upon receiving the mayor’s sign-off.

Measures modified prior to the Council’s second and final vote on Secure DC included:

allowing for DNA samples to be taken in certain new circumstances, but only if and when all of the following occur: a person is arrested, charged, and judge issues a probable cause finding, and if and only if the person is charged with a violent crime or certain sexual abuse misdemeanors. Samples are deleted and unused unless the person is subsequently convicted.
requiring the mayor to develop and publish a comprehensive public safety plan within a year of Secure DC’s effective date
leaving the threshold for felony theft at $1,000 rather than the reduction to $500 as was proposed initially (though $1,000 in cumulative thefts by an individual across any six-month period will now also trigger a felony theft charge)
banning the wearing of masks in the commission or intended commission of crimes, but not simply if it causes intimidation or fear for personal safety. Masks worn for health, religious, or First Amendment purposes are explicitly exempt from the ban
continuing the current practice of publishing police officers names and badge numbers in public notices of adverse action proceedings that would lead to an officer’s dismissal
expanding the Sentencing Commission, including providing voting seats to the Chief of the Metropolitan Police Department, one dedicated seat for a victim of violent crime, and one dedicated seat for a returning citizen
clarifying reporting requirements on the Criminal Justice Coordinating Council in regards to witness protection

Among the components of the bill that remained unchanged for the second vote were measures to:

create new felony offenses for unlawful discharge of a firearm (firing a firearm in public), endangerment with a firearm, and unlawfully discarding firearms/ammunition
expand the definition of carjacking to include not just incidents when the car is taken from a victim who is in the car, but also if the victim or perpetrator is within sight of the car, the perpetrator can take immediate possession of it, and intends to do so
create a permanent standalone offense of strangulation
create a new “directing organized retail theft” offense
extend for an additional 225 days (in addition to the previously approved 225 days) expanded pre-trial detention measures, so that the effectiveness of the measures can be analyzed prior to decisions regarding their further renewal
declare temporary drug-free zones, with substantial requirements for advance notice to the public, councilmembers, and agency heads
maintain bans on chokeholds and limits on vehicular pursuits by police, while clarifying the language surrounding each
enhance penalties for committing crimes of violence against senior citizens, vulnerable adults, transit workers, or on Department of Parks and Recreation property
make permanent mandatory bimonthly law enforcement shooting reviews, to analyze the causes of, and potential for retaliatory action following, all fatal shootings
speed up date at which a previously enacted expansion of criminal record sealing and expungement can be requested by affected individuals, from October of 2027 to October of this year
allow for civil violations for transit fare evasion to be more effectively enforced
require monthly reports on the performance of the 911 call center, and mandating improvements to the 311 system
create a hospitality job training program at the DC Jail, and ensure that nutritional meals are served there
delay until 2025 the requirement that businesses accept cash payments

As indicated above, it is unclear when each of the bill’s measures would go into effect. Given that a parallel, emergency version of Secure DC was also passed by the Council, any measure in the bill that does not impose a cost on the government can go into effect immediately, for a 90-day period.

Measures that do cost money fill face two potential delays. First, while all District legislation faces a mandatory and unconscionable 30-day Congressional “layover” or waiting period before going into effect, changes to the criminal code were singled out by Congress 50 years ago in the Home Rule Act as requiring a layover double the normal length. Given how seldom today’s Congress is in session, that double-length 60 Congressional day layover will be quite protracted.

Additionally, even after presumably surviving its Congressional layover, since a number of the bill’s provisions cost money (or have a fiscal impact, in Council parlance), they will not go into effect until and unless they are funded in an upcoming budget. This will lead to further delays.

Restaurant Revitalization

Much like the public safety omnibus, the Restaurant Revitalization and Dram Shop Clarification Amendment Act that also received its second and final vote at the most recent Legislative Meeting incorporated portions of five prior bills that, collectively, had been introduced by seven of the councilmembers.

At its prior Legislative Meeting, the Council unanimously approved a version of the bill that was largely intact as introduced. A number of potential amendments to the omnibus restaurant reform measure were held back, and instead offered prior to the Council’s second and final vote on the bill.

One amendment to the bill created a so-called “safe harbor” from consumer lawsuits regarding the service fees that have proliferated since the passage of Initiative 82, which gradually phases out the tipped minimum wage. Restaurants can now avoid such lawsuits by limiting any service fees to a maximum of 20 percent, notifying customers of the fee via their menus, websites, and public signage, and clearly explaining the amount and specific purpose of the fee.

Another amendment eliminated a requirement that the Department of Employment Services create a tip reporting portal, since the portal has never been created and would be quickly obsolete if it ever was.

An amendment to accelerate the elimination of the tipped minimum wage by two years was not accepted, meaning the phase-out will continue through 2027 as originally planned.

Outside of its tipped minimum wage provisions, the restaurant revitalization bill remained as it had originally passed at the prior Legislative Meeting. In regards to those other terms, the bill would modify the definitions and standards in the District’s dram shop law, which determines grounds for liability in incidents where an intoxicated individual leaves a liquor-licensed business and subsequently crashes their vehicle leading to damage or injury. The bill brings District law more in line with other jurisdictions, which will likely decrease the unparalleled high cost of liquor liability insurance in the District.

The bill makes permanent provisions in effect currently via emergency/temporary legislation, namely a ban on food delivery platforms limiting the number of drivers, handling a certain restaurant’s deliveries, or the service radius of those deliveries, simply due to the commission that restaurant pays the delivery platform. The bill also requires restaurants to make their restrooms available to delivery drivers, and it mandates that delivery driver working conditions be studied by the Mayor with a report due to the Council by July 1, 2025.

As passed at first reading, the bill exempts service fee payments from the calculation of restaurant revenue for the purpose of a commercial landlord’s determination of lease payments.

In other action, the Council passed emergency and temporary legislation allowing the mayor to extend existing opioid crisis and juvenile crime public emergencies, which provide limited procurement flexibility for expenditures related to these emergencies if prior written notice of each instance of need for this flexibility is provided in advance written form to the Council.

The Council’s next Legislative Meeting is scheduled for April 2.