By Susan Larson.
As city residents living near Happy Endings Bar & Grill continue to demand the city close down the establishment, Assistant City Manager Mark Whitley and City Attorney Kathleen Dooley will tell City Council on June 9 they recommend the city “not [to] take an extraordinary action at this time against this business.”
The residents are not happy. “We expect City Council to acknowledge this establishment has exponentially more police calls than Kybecca, Bistro Bethem, La Petite, Sunken Well and other law-abiding restaurants, and to then act accordingly,” said resident Tom Byrnes. “We expect council to limit Happy Endings hours to 9 p.m., like Sunken Well. We refuse to accept the phony excuses the council makes up or hides behind in claiming they can’t take this specific action; they can.” (Emphasis by Mr. Byrnes.)
Following is the memorandum, released in advance of Tuesday’s City Council meeting.
TO: City Council
FROM: Mark Whitley, Assistant City Manager Kathleen Dooley, City Attorney
DATE: June 4, 2015
RE: Happy Endings update
MEMORANDUM
At its May 26, 2015 meeting, City Council asked staff for an update on Happy Endings, and a response to citizen comments on the May 12, 2015 staff report. Staff’s recommendation is to continue to enforce applicable zoning and public health and safety laws in a fair, impartial, and reasonable manner; but not to take an extraordinary action at this time against this business.
Meeting with landowner and restaurant owner:
The landowner, restaurant owner, and restaurant general manager accepted an invitation from Captain Brian Layton to meet to discuss ways to address the noise complaints. The Building Code Official and Zoning Administrator, as well as the Director of Planning and City Attorney joined the meeting at the Police Department on Wednesday, June 3. Everyone joined in a productive discussion aimed at creative problem-solving. Captain Layton suggested that a smoker’s area be established on the side of the building away from the residences, for use after 10:00 p.m. The landowner and restaurant owner agreed to try this on a temporary basis.
Zoning enforcement – outdoor patio closing hour:
Zoning Administrator Michael Craig attended the June 3 meeting to explain how the 10:00 p.m. closing time for the patio will be enforced. Everyone understands that food and drink service on the patio will cease at 10:00 p.m., but that diners may remain seated to finish their meal. The patio will not be used as a place for social congregation by restaurant patrons late at night. On many nights, there will continue to be a time period when service outdoors is winding down or tapering off after the last service.
Noise ordinance – review:
The City Attorney’s office and Fredericksburg police are reviewing the general prohibition provision of the noise ordinance to determine whether it might be made more effective.
Mediation:
Professional mediation is acknowledged as an excellent means for resolving intractable disputes. It has been used to resolve long-standing international disputes, labor disputes, the dissolution of marriages, civil litigation, employment disputes, and neighborhood disputes. Professional mediators bring special training, tactics, and skill sets to dispute resolution. Staff acknowledges that mediation would be successful only if all parties were willing to cooperate. However, the suggestion that the City facilitate professional mediation was not intended as an insult or to give offense.
State sales tax charge:
The Commissioner of Revenue has advised the restaurant that it has overcharged patrons for the state sales tax, and has referred the matter to the Virginia Department of Taxation for further review. The correct total tax is 11.3% — 6% City meals tax + 5.3% state sales tax. The restaurant was charging 12%, or 6 + 6. This is a matter within the jurisdiction of the Department of Taxation.
Pending ABC violation:
The ABC will hold a hearing later this month on a charge that the annual food receipts are less than required.
DVD evidence:
City staff and Council members have reviewed the neighbor’s recording of activity associated with the restaurant. The DVD does record the sound of people’s voices at night, talking, laughing, and hailing a cab. There is also the sound of a car idling and cars driving by. The conduct on the DVD is not criminal in nature; it does not violate the noise ordinance. Staff proposes to play the DVD at the City Council meeting for purposes of illustration and discussion.
Grand jury:
The May 12 staff report did not recommend a return to the grand jury process for a criminal public nuisance indictment, in light of the finding that the business is in substantial compliance with applicable public health, safety, and welfare laws. If called to testify, Fredericksburg police officers would testify truthfully about their observations of the business, providing dates, times, and what they observed.
Comparison of Happy Endings with restaurants that have received public nuisance warning letters:
The May 12, 2015 memo summarized the basis for City Council’s April 2011 declaration that Mexico Lindo had become a public nuisance, including multiple violations for over- occupancy, ABC, tax, narcotics, and violent incidents, including ten separate incidents of assault. On May 26, City Council asked how Happy Endings compares with two other restaurants that have received public nuisance warnings in the past – Otter House and F.W. Sullivans.
Both Otter House and F.W. Sullivans are distinguished from the current operation of Happy Endings by the presence of incidents of assault and property damage associated with each restaurant. Both businesses closed for business-related reasons. The City did not take legal action to close either restaurant.
Notable incidents include the January 1, 2012 aggravated assault that left a male subject unconscious and bleeding on the sidewalk in front of the Otter House. An Otter House off-duty bouncer was responsible for the assault. An on-duty employee moved the victim of the assault, sent the assailant back into the bar, and misdirected police when they responded to the scene.
On May 26, 2012 police responded to reports of a male subject who was injured and lying in the road in front of the Otter House at 2:30 a.m. Charges of malicious wounding were placed against a 21-year old man from King George.
On June 22, 2012, police responded to reports of a fight involving a large number of people on the sidewalk and in the street outside the Otter House. Several individuals were taken into custody for their part in the altercation.
A fight at F.W. Sullivan’s on December 26, 2011 resulted in a broken window at the bar.
One June 16, 2012, a drunken F.W. Sullivan’s patron assaulted the restaurant security officer after becoming involved in a dispute about paying his tab. Fredericksburg police arrested the patron for being drunk in public, and the security officer obtained a warrant for assault. Police responded to a fight in the parking lot involving two male subjects on June 23, 2012. One was arrested for public intoxication and assault and battery. The other was released without charges.
The bar was given a written warning by ABC on May 27, 2012 for multiple instances of selling alcoholic beverages to persons whom the licensee knew or had reason to believe were intoxicated, and one instance of serving an underage patron.
The officer of the Royal Navy who broke in to the Fredericksburg Baptist Church on August 4, 2012 during a drunken rampage, and broke a stained-glass window from the inside, had been drinking at F.W. Sullivan’s with a group of fellow officers. The man was highly intoxicated.
Communication with the neighbors and business:
Captain Brian Layton has been the principal point of contact between City administrative staff and the neighbors. He has spent countless hours on the telephone and on-site, communicating with the neighbors and with the business. Captain Layton has also served as the principal point of contact and communication with the landowner and business owner and manager. He has pledged to all concerned that he, and the police officers under his command, will act fairly, impartially, and reasonably.
Over serving of alcohol/drunken female patron:
Fredericksburg police and ABC agents have closely observed the business and have not observed violations of ABC regulations except as stated in the May 12, 2015 report. A Fredericksburg police officer did observe a female patron being helped out of the bar apparently due to intoxication, but within seconds her mother pulled up in a vehicle and drove her away, on November 13, 2014. No charges were filed.
Differences between summary of calls in May 12 report v. February 13, 2015 report provided to neighbors:
Fredericksburg police officers met at the Police Headquarters with neighbors and the restaurant’s attorney on February 13, and reviewed data for the previous six months, including time spent on focused patrol, public service (random checks to see if Mr. West’s driveway was blocked), calls for service, undercover details, and incident reports. The May 12 report to City Council was a summary report, covering a longer period of time. It did not go into the same level of detail as the February 13 report, with respect to calls for service where no violations were observed.
Declare the grandfather clause null and void due to a change in circumstances:
One speaker urged Council to declare the grandfather clause null and void due to a change in circumstances. The grandfather clause does not apply to this business. The business is a by-right use in the Commercial-Transitional zoning district, as is the use of the outdoor patio until 10:00 p.m., as stated in the May 12 memo.
Change the zoning:
The speaker urged the Council to change the zoning of this area. This area has been zoned CT since 1984, when the district first came in to existence. CT permits eating establishments and single family residences by right. If there were a change in zoning, then the restaurant use of the Happy Endings property could continue as a valid nonconforming use. The city has better control of the use through its existing CT regulations.
Establish a permanent police presence:
The speaker also urged Council to establish a permanent police presence at this location. To establish a permanent police presence at this location is not a good use of law enforcement resources and is not recommended.
Shut the business down:
Finally, the speaker urged the Council to shut the business down. In an appropriate case, the City Council should exercise its authority to abate a public nuisance, by petitioning a court to close a business or to take other appropriate steps to abate the nuisance. This is not that case.
Conclusion:
The City’s role in this matter is to continue the fair, impartial, and reasonable enforcement of its laws.
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