September 26, 2012 | by Mark Lee
Is overly sensitive the new intolerance?

Should popular community venue Nellie’s Sports Bar be forced by the District government to change its name?

If a recent edict by the D.C. Office of Human Rights (OHR) is any indication, the owners of the gay eatery and drinking establishment at 9th and U streets in Northwest Washington might want to start thinking about a replacement commercial moniker.

Tony Tomelden, owner of casual neighborhood bar The Pug on the burgeoning H Street, N.E., nightlife corridor popular with hipster residents, would likely offer that advice following a startling run-in with the agency earlier this month.

He has good reason. The city government doesn’t.

As first reported by Washington Post columnist Mike DeBonis, Tomelden had since April featured a vodka drink called “Marion Berry’s Dirty Asian Summer Punch.” The beverage, also known as “The Ward 8 Special,” was launched as a social commentary mocking D.C. Council member and former four-term mayor Marion Barry’s highly controversial remarks the same month regarding Asian business owners and what he called their “dirty shops,” as well as bemoaning the number of locally employed Filipino nurses.

It wasn’t until Sept. 5, perhaps due to DeBonis stopping by the prior evening and tweeting a photograph of the chalkboard sign advertising the drink, that regulators got involved. The next day Tomelden received a letter from OHR declaring the sign “racially offensive” and ordering that it be removed and the item taken off the menu. Otherwise, he would be hauled before the D.C. Commission on Human Rights and charged with violating the city’s Human Rights Act, facing a fine of up to $10,000.

Of note, Tomelden is part Filipino, offspring of Irish and Filipino heritage.

The agency acted utilizing an interpretation of its authority to regulate commercial speech in places of public accommodation. Given the absence of discriminatory policies or behavior, many residents were shocked that OHR dismissively characterized applicable First Amendment protections.

OHR director Gustavo Velasquez wrote Tomelden in bureaucratic boilerplate indicating “we believe that such a sign is not demonstrative of the shared values and practices that make the District a fully inclusive environment for all residents and visitors.”

The anti-discrimination law includes a provision prohibiting the right to “print, circulate, post, or mail, or otherwise cause, directly or indirectly, to be published a statement, advertisement, or sign which indicates that the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation will be unlawfully refused, withheld from or denied an individual; or that an individual’s patronage of, or presence at, a place of public accommodation is objectionable, unwelcome, unacceptable, or undesirable.”

Is the agency’s questionable interpretation that a politically satirical drink name and promotional sign violated those provisions legitimate? Or are misguided administrators overzealously hyper-reacting in an inappropriate and constitutionally offensive manner?

Equally important, does such heavy-handed regulatory intrusion undermine support for the admirably full-throated legislative protections for an expansive complement of protected classes against real and actual discriminatory practices?

Have we become so thin-skinned that previously protected speech is now subject to regulator evaluation lest someone take offense?

Public reaction to the government’s action has not been kind, or supportive. Local blogs quickly filled with disdainfully critical commentary. A self-inflicted lowering of agency esteem making mockery of the law in many a formerly supportive mind was the unfortunate result.

Tomelden chose not to tortuously pursue the expensive path of fighting city hall, citing responsibilities operating a small business as being more important than taking on the local thought police. “It’s clearly frustrating, and it is what it is,” he lamented.

Since the cocktail and sign are now relegated to local folklore, there is no impetus to prompt resolution as to whether the city exceeded its authority or acted as a wrongful bully.

The unpretentious bar is decorated with eclectic artifacts, including an “Irish Need Not Apply” sign presumably in jest of Tomelden’s ethnic progeny. “I wonder if they are going to make the Irish bars take down the leprechauns,” he queried.

Or begin trolling comedy clubs to monitor comic content emanating from the stage.

Is commanding Nellie’s to desist offending effeminate members of the gay community next?

Mark Lee is a local small business manager and long-time community business advocate. Reach him at OurBusinessMatters@gmail.com.

3 Comments
  • Regarding discrimination and DC human rights… I have been so very violated by DC and Citizens in my neighborhood. It appears that hate has been generated by people un beknownst to me however they freely harrass me. I may have angered a former room ate or ….? But to have constant harrassment as I go about my business is astonishing!!!

  • You may call it “the new intolerance,” but there’s nothing new about it. The OHR has been pulling stunts like that at least since the eighties.

    Also, progressives who approve of the OHR’s actions need to stop kidding themselves that social conservatives will never take the same sort of action. History shows that the monster that you’ve helped to create will not always do your bidding.

  • Actually, as I understand it, Nellie’s was named after the owner’s grandmothers.

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