2015-03-17 Business License Appeal Hearing Minutes


Council met in special session regarding an appeal of a denial of a business license on Tuesday, March 17, 2015. Mundie called the meeting to order at 6:30 pm.

Council members Keith Bast, Jeff Cusat, Jeannie Mope, David Sosar and Jack Mundie were present. Also present
were Martin Kelly, Attorney William Byrne, Counsel for Martin Kelly, Mike Wilfing, Code Enforcement/Licenses and Permits Supervisor, Attorney Bob Cohen, City Solicitor, and Police Chief Frank DeAndrea.

Attorney William Byrne, Counsel for Martin Kelly, said Kelly was the owner of the Pulse Nightclub on Broad Street, which is a BYOB establishment. Upon applying for renewal of his business license, Kelly received a Notice of Denial from
the Mayor's office dated January 22, 2015. Byrne stated that Kelly obtained all of the necessary fire and health certifications and licenses. He stated the Pulse Nightclub is in a commercial highway (CH) zoning district, and restaurants are a permitted use in this zoning district. Kelly sells food in his establishment, therefore, his business would be considered a restaurant. Byrne stated that he completed the paperwork for the Certificate of Occupancy, but did not yet receive it. He feels Kelly has met all the requirements and his business license should be reinstated. Kelly said he petitioned the City four times about the Certificate of Occupancy, but did not receive it. Sosar said there must be a reason why the Certificate of Occupancy was not issued. Mundie asked when Kelly's establishment opened for business, and Kelly responded March 2011. Sosar said he is hearing this establishment referred to as a restaurant, bar and nightclub, and asked which is the correct designation. Kelly said it opened as a sports bar and stayed that way for three years. It then became a nightclub for eight or nine months. In November 2014, it became a BYOB serving food. Sosar asked if a nightclub is a permitted use for this zone, and Byrne responded yes. Mundie asked if Kelly gave up his liquor license, and Kelly responded yes. Bast clarified that this establishment is changing from a nightclub to a BYOB, and Kelly said yes. Mundie asked how long it operated as a BYOB before being shut down. Kelly replied it operated as a BYOB from November 2014 to January 2015. He added that the letter
from the Mayor's office does not give a reason for the denial. Cusat asked if he failed any of the inspections. Kelly responded no. Bast asked what the hours of operation are for the BYOB. Kelly said he would be open from either 9:00 pm or 10:00 pm to 4:00 am. Bast stated that the new BYOB Ordinance only allows operation from 11:00 am to 11:00 pm. Wilfing said he never received the formal paperwork from Kelly regarding this matter. He added that Kelly needs to file a zoning application to change the use of the establishment. They need to answer some zoning questions first before moving forward with this. Cohen said Kelly needs a variance because a nightclub/lounge is not a permitted use in a CH district. Wilfing said he is just asking them to start where everyone else starts in this process. Bast asked if there are certain forms that need to be completed to change the use of the establishment, and Wilfing responded yes. Wilfing stated it is licensed as a restaurant/bar, therefore, he would need to file a zoning application and ask for a variance. Cohen said all licenses and permits need to be approved before proceeding. He said the establishment needs to be within the parameters of the City's zoning laws. DeAndrea stated that he sent the owner of the local hookah lounge a letter regarding the City's Nuisance Ordinance because of the problems occurring there. He was told the hookah lounge is closed, and is now called the Pulse Nightclub and Lounge. Kelly said all he did was change the name of the establishment not the use. Byrne said this is not a zoning hearing and the zoning officer is not present. There is nothing in the City's ordinance defining what a restaurant is. He said he did not receive
any notices from the Zoning Board, and they are strictly here for a business license appeal, not a zoning hearing. Sosar said he would like a written legal opinion from Cohen regarding this matter. He said he believes this issue should go back to zoning. Byrne said this is not a zoning violation. He added that the Mayor signed the letter, but he is an elected official and not a zoning officer. Cusat asked if the building was subleased to anyone. Kelly replied no. Cusat asked if Kelly originally applied for the business license as a restaurant, and Kelly responded yes. Kelly added that Wilfing condemned his building for no apparent reason. Wilfing said when the Fire Department re-inspected the building, none of the fire violations had been abated. Kelly said he spoke with the Fire Chief and was told there was no reason the building could not be reopened. Cohen said this was not intended to be a zoning hearing, and the burden of proof does not fall on the City. He added that a business license is not a right. Byrne reiterated that there was no proof of a zoning violation sent to Kelly. Byrne said there is no reason Kelly should not be given his business license. Sosar said he is finding it difficult to make a decision because Kelly said he is not sure what the establishment will be used as in the future. Kelly stated he will be serving food regardless of what type of business it is. Cusat asked if it ever stopped being a restaurant and Kelly said no. Sosar said the things you do in your business define it. Byrne said food will always be served at this establishment. Kelly said he was told to just send in a check for the business license with a note that the name was being changed to Pulse. No application was ever received from the City for Kelly to fill out. Byrne said Kelly met the criteria for obtaining the business license and he asked Council to grant Kelly's appeal. Mundie asked Cohen if this needs to be voted on now, and Cohen responded there is no requirement that a decision needs to be made tonight at the hearing. He felt Kelly's use of the establishment as a restaurant to be discussed
in further detail. Wilfing said Mark Thompson, the City's former health officer, inspected the business and the kitchen was not open yet. Sosar said a lot of information was given tonight and he needs time to make a proper decision. Mundie suggested continuing the hearing until the next meeting. Sosar agreed. Mundie asked Cohen why the Mayor was signing letters that Wilfing should have signed. Cohen replied that Wilfing felt more comfortable with the Mayor signing them and sending them out, although it is not the usual procedure. Mundie commented that the Mayor should not have signed and sent the letter. He stated the hearing is continued until April 7, 2015 at 6:30 pm.

Mundie adjourned the meeting at 7:30 pm.

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