A final decision was not reached by the D.C. Board of Zoning Adjustment at the Jan. 12 appeal hearing of Philly Pizza & Grill. Until the next hearing, which will take place on Feb. 9, Philly Pizza will continue to operate under its stay of enforcement granted Nov. 17, which allows the establishment to remain open until a decision is reached.

Philly Pizza’s policy of closing the doors at 2 a.m. with a continued delivery option will still be in effect through the stay of enforcement period.

ehmet Kocak, the owner of Philly Pizza, said that he would continue fighting despite strong opposition from the Advisory Neighborhood Commission and Georgetown residents.

“We don’t want to close the doors. The doors are open. The people will still get pizza,” Kocak said.

The primary issue addressed at the Jan. 12 meeting was whether or not Philly Pizza is a fast food restaurant or a sit-down restaurant. The Department of Consumer and Regulatory Affairs revoked its certificate of occupancy on Oct. 14, claiming that the establishment violated its terms of occupancy by operating as a fast food restaurant, although it is registered as a sit-down restaurant. According to zoning laws, only sit-down restaurants can be located on residential streets–such as Potomac St., on which Philly Pizza is located.

Following the revocation and resulting stay of enforcement, Kocak appealed to the BZA, resulting in the six-hour meeting that will continue on Feb. 9. The cross-examination of witnesses and further testimony will occur on this date. If the Feb. 9 meeting runs over again, the stay of enforcement will be addressed by the Board. Mercedes Frazier, a receptionist for the D.C. Office of Zoning, said that about 90 percent of the time, cases that come up are decided on that day, so the length of this hearing is an anomaly.

During the hearing, both sides debated the ability of residents from the ANC to testify. ANC Chair Ron Lewis and Commissioner Bill Starrels, along with their attorney Martin Sullivan, were key opposing players to Kocak in the meeting.

John Patrick Brown Jr., Philly Pizza’s legal representation, argued that the case against Philly Pizza was insubstantial.

“This investigation was flawed from beginning to end . There’s been no paperwork, no reports, no photographs, no documents provided by the DCRA . there has been no documentation [about Philly Pizza’s practices in August] presented to support their investigation,” Brown said about overriding some legal technicalities.

Kocak argued that Philly Pizza meets the requirements for a sit-down restaurant. He presented a poster of pictures depicting families enjoying dinner at Philly Pizza with red dishes, silverware, and napkins.

Opponents questioned the validity of his claim on several grounds. Philly Pizza does not contain a dishwasher; instead, there is a 3-sink unit in the basement of the restaurant, which sometimes accounts for a failure to clean dishes in a very timely manner. The establishment also does not have any glassware.

“Lack of a dishwasher is indicative to me that you are not planning on a restaurant operation . Is [the dishware] simply a token gesture toward a restaurant use? I’m very concerned [that] from the operational standpoint he isn’t meeting the burden of proof as a restaurant . A dishwasher is one of the basic things you have to have to have a restaurant,” said Michael Turnball of the Zoning Commission.

To strengthen his claim, Kocak cited an increase in dine-in customers. He argued that after his first 16 months of business, his business was continuing to grow and his core customer sit-down base was increasing.

45 percent of Kocak’s customers currently are dine-in. However, Philly Pizza’s opponents believe that there were fewer dine-in customers in August, when the DCRA conducted its investigation.

DCRA’s General Counsel Melinda Bolling and members of the Zoning Commission objected to a spreadsheet of numbers Kocak and Brown produced that seemed to distort percentages of take-out, sitting in and delivery. The delivery numbers were excluded from the first table, and the board reacted very adversely to this.

“You’ve excluded some evidence . For us to [skew] these numbers and take out delivery [statistics] is just inappropriate and wrong,” Bolling said.

Sullivan pointed out that Kocak’s numbers of carry-out and sitting in were continuing to increase as this case has continued.

Sullivan said that Philly Pizza should close every night at 11 p.m.

“Kocak has gotten away with this [late closure] for a year and a half; it’s harmed my clients, and it continues,” said Sullivan.

Brown argued that the establishment should not close earlier than it currently is.

“My client closing at 11 o’clock [is] suicide for my client. My client would agree to all nights close at 2:30, and he would be allowed to continue his delivery on Friday and Saturday until 3:30,” said Brown.

“We love all the support. We don’t want to shut the doors,” said Kocak.”

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