CITY OF
SOUTH LYON
SPECIAL CITY COUNCIL
MEETING
FEBRUARY 26, 2008
Mayor
Doyle called the meeting to order at 7:00 p.m.
Mayor Doyle led those
present in the Pledge of Allegiance to the Flag
PRESENT:
Mayor Doyle
Council Members:
Kivell, Kopkowski, Maida, Morelli, Selden and Wedell
City Manager Cook
Attorney Lee
Attorney Hill
City Clerk/Treasurer Zemke
Police Chief Collins
Attorney Parvin Lee stated
that we are here pursuant to notice given on February 14, 2008 to the license
holders of Liquor License #162503-2007.
This matter is here because the constitution and the rules and
regulations of the Liquor Control Commission require that before the City
Council make findings or resolution to pass on to the Liquor Control Commission
that we hold a public hearing so that issues that we have concerning the license
be presented to the license holder and that they be given the opportunity to
refute or comment to justify retaining the license and for stalling the action
Council is being asked to take.
This meeting was scheduled for 7:00 p.m. on this date.
It is now 7:05 p.m. and the applicants or their representatives are not
present. We will proceed to create
the record and give the opportunity for that applicant to appear.
The purpose of this meeting is to provide opportunity for the applicant
to respond. Notice was sent to Waldenmayer & Coffey, LLC which is the owner of
Bella Luna and license holder. The
restaurant is located at 134 E. Lake Street.
Attorney Lee stated that we
have set forth five specific items that we indicated to the license holder that
we would be addressing. He stated
that we have a resolution and set of findings of fact that we will ask Council
to find. The property at 134 East
Lake Street is up for sale. This building was opened as a site for a license
approximately two years ago asking for the last license that the City had.
That license was given with certain conditions.
The license would not be issued until a Certificate of Occupancy was
issued for the building. On
September 28, 2007 that Certificate of Occupancy was issued by the City.
However, the City used the issuance as a natural consequence of a
completion of the development and opening of business with the understanding
that this building would be open to bring people into South Lyon and enhance the
downtown area. Since September 28th,
we cannot identify more than five days in which this building has been open as a
restaurant. As indicated in an
article in the South Lyon Herald, the restaurant has been closed and it
identified people having planned and made reservation to have a meeting at the
restaurant appear to find the restaurant closed and no notification of
unwillingness to honor the reservation.
On January 30th, our Police Department received notification
by the Liquor Control Commission that the license was suspended, and it remains
suspended. The reason given was
that they have failed to provide evidence that they have maintained their proper
insurance, which is a condition of operating a liquor establishment in the State
of Michigan. This is an extremely
important protection for the public.
He stated that he would like to add to the findings of fact that today
Bella Luna has had its water shut-off due to non-payment.
The establishment was given until yesterday to pay the bill and failed to
do so. The sister establishment was
also issued a shut-off notice, but they did come in and paid the bill in full.
This is the same license owner.
Now Bella Luna stands as a derelict building without water service.
There have been a number of calls to the sister establishment indicating
police activity. While these
reports are not evidence of crimes themselves, they are evidence of police
involvement and utilization of City manpower as a result.
While that is not direct evidence that the Bella Luna license should be
revoked, it is evidence that this license holder perhaps is not the person the
City wishes to hold two licenses in the City.
He stated that he is asking Council to make the findings of fact that are
presented. He believes that the
evidence is clear that the applicant in applying for the liquor license made
plans and promises to the City. The
City’s policy for issuing liquor licenses states in part that “the licenses are
for the purposes for enhancing the economic growth and utilization of the
downtown area of the City of South Lyon”.
Having the business immediately put up for sale after issuance of the
license without creating a viable business, having turned people away who have
made reservations does nothing to enhance the growth and development of our
downtown area. We need this license
to attract a business to the City that would increase foot traffic to help not
only this business but other businesses downtown to grow and be a designation
point. For this reason, he believes
that the City needs to have this license back to allow us to offer it to another
business when an opportunity presents that meet the stated reasons for licenses
as set forth in the City’s Liquor Policy. He stated that it should be noted that
we have not had any response from the person who should be here to defend or
explain their position. He stated that
Council may add or subtract to any of the findings of fact.
If Council approves the resolution, it will be passed on to the Michigan
Liquor Control Commission for their consideration.
The City of South Lyon does not control this license.
Our actions are only recommendations to the Liquor Control Commission and
their decision is final relative to these matters.
However, he would expect that upon receiving a proper resolution from
this body, that the Liquor Control Commission would hold its own hearing, make
use of the record being created here and hopefully follow our recommendation in
revoking this license.
Councilman Wedell asked what
method was used to serve Waldenmayer & Coffey, LLC the letter. Attorney Lee
stated that they used first class mail, which is what is required in the State
of Michigan. He further noted that
the owners of Bella Luna have acknowledged that this hearing was imminent.
Councilman Wedell stated
this is a public hearing and asked if anyone in the audience wishes to speak
should they be given the opportunity.
Attorney Lee stated that Council is not obligated.
This is a public meeting for a limited purpose, but Council can choose to
allow that. The consensus of
Council was that they would allow public comment after Council had opportunity
to ask questions.
Council Member Kopkowski
asked if this is the license holders’ only opportunity to make explanation.
Attorney Lee stated that they have the right to boycott this meeting and
wait to make presentation at the Liquor Control Commission, but he would hope
that it will be taken into consideration their failure to come here and answer
the City’s questions. Council
Member Kopkowski asked how long the process would take.
Attorney Lee stated that he believes that the process would be concluded
prior to the date in which licenses are typically renewed, which is March 30th.
Councilman Kivell stated
that at a prior meeting, Attorney Lee had stated that he could not find evidence
of another community taking similar action.
Attorney Lee stated that they have not found an instance where this has
occurred. There are numerous
instances where a City has taken action to ask that a license be revoked after
the business has been in place and numerous violations have been built up.
In this case, you cannot get violations if you are not open.
Councilman Kivell stated
that it has been indicated that there is evidence of the restaurant only being
open five days, but he has been there three times.
He asked how five days was determined.
Attorney Lee stated that this is based on observation by the Building
Department. He was hoping that Mr.
Waldenmayer would be here to clarify that information.
Councilman Selden stated
that he cannot comprehend why there is nobody here to represent Bella Luna given
the severity of the situation.
Councilman Morelli asked
Attorney Lee if he would be present at the hearing that the Liquor Control
Commission will conduct. Attorney
Lee stated that he would be and they would be bringing a record of this meeting.
Mr. Roger Tikkanen of 893
Village Way stated that the economy is so bad and asked how you can keep a
business open if you do not have the money.
He stated that we have good people trying to do good with these
restaurants. You cannot kick a dog
when it is down. You do not know
what you will get next. He stated
that more businesses will be lost when Meijers is opened.
Margaret Kurtzweil of 939
West Hills Drive stated that she is an attorney that deals with a lot of
businesses and she would vehemently disagree with the gentleman’s statements
blaming the demise of Bella Luna on the economy.
The economy may not be the best, but there are businesses in the area
that are doing very well. She
believes that what we have here is a business owner that made a bad business
decision. It was not a good
decision to think that you can open a restaurant across the street from another
restaurant in a community that does not have the demographics to support that
type of restaurant. We do not
have that many people coming downtown every week where there are a variety of
restaurants and expect to stay open.
To miss the very basic demographics when this restaurant opened up adds
credence and credibility to the fact that they made a very bad business
decision. The fact that they are
not here tonight is also evidence of their refusal to accept responsibility for
the decisions and the way they have managed the endeavor.
It is shameful that they are not here.
If they want to be a part of this community, they want to defend their
business practices then they should have been here.
This is a civil community.
She stated that she does not think that they were up front with this Council
when they made certain representations.
She stated that one time when she was there and wanted to use her credit
card, they had to run across the street in order to charge her dinner.
They have gone in there and have had to get their own silverware, water,
etc. and the gentleman who waited on them was honest and stated that he had
never waited on tables before and was simply doing it as a favor.
They did not even have professional adequate staffing.
What she has observed does not indicate to her that this was a business
owner that intended to run a very viable business.
The liquor license has value and as long as he has that license and it is
not suspended, it has value and if he sells that property with an attached
liquor license, he stands to possibly walk out with a nice “chunk of change”
leaving this community with nothing.
She further discussed the proposed business plan, expectant volume, etc.
She stated that she would recommend that Council consider this community
and consider the facts and conduct.
If you were a business owner serious about your business and how it is run and
how you approach the community, then you have an obligation to come before your
peers and defend your business practice.
Councilman Selden stated
that there is another Italian restaurant in town that has been successful with
just a beer and wine license so it is not just the economy.
Councilman Morelli stated
that when the request came before Council, they did indicate that they did not
intend to be open seven days per week.
He further stated that he does believe that they were open more than five
days. They may have only been open
five days after they received the liquor license.
They were open two to three weeks before they even got the liquor
license.
Councilman Kivell stated
that when they originally made the request we were trying to extend as much to
them as we could. They created some
energy downtown and had good customers at the existing restaurant.
We took a leap of faith and it did not turn out.
He stated that he would have like to have seen them here, but it may have
been a business decision. It may
make more sense to make their argument to the people who actually control the
license. He would have liked to
have them explain to our community and the people who entrusted them with this
benefit.
Mr. Roger Colissimo stated
that he did do advertising for Don Waldenmayer. He is not here to stick up for
him because he does believe that he should be here to do that for himself.
The restaurant opened in April and were
consistently open April through June with a few days closed when things started
to fall apart. He ate there several
times and there were some service issues and they were going through some trials
with the cooks and staff overall.
There were some financial issues so there were some business practices that were
short-sided. The bottom line is
that it is his operation and his responsibility.
He did spend a lot of money in those buildings to update and upgrade them
including the theatre. He stated
that he believes that he had the right intentions just mismanagement of
business. The decision that is made
for this group will not only impact Bella Luna but also the Bistro and the
Theatre.
Attorney Lee stated that we
need to make a distinction. We are
not shutting down the restaurant.
They can continue to operate. He
stated that he was not aware that the restaurant operated as a restaurant in
April and May when they did not have a liquor license.
We are talking about a liquor license that was issued after September 28th
after a Certificate of Occupancy.
Council Member Kopkowski
asked how this will affect Mr. Waldenmayer’s ability to get a beer and wine
license. Attorney Lee stated that
if the Liquor Control Commission rescinds this license, it would only preclude
him from making application for another one for two years.
After that point, he is free to start over and any application would
stand alone. As we speak, he could
apply for a beer and wine license.
Councilman Selden stated
that Council in no way is trying to harm anyone, but rather protect a very
valuable asset of the community.
CM 2-1-08 – STATEMENT OF
FINDING OF FACT – LIQUOR LICENSE – BELLA LUNA RESTAURANT
Motion by Kopkowski, supported by Selden
This
matter having been brought on before the South Lyon City Council on February 26,
2008, notice and opportunity to be heard having been given to the Licensee
Waldenmayer & Coffey, LLC, the South Lyon City Council makes the following
finding of facts:
1.
The
property 134 East Lake Street is up for sale.
2.
The
Licensee does not intend to use the liquor license as originally set forth in
its application to the City of South Lyon.
3.
The
Licensee has failed to open its business as originally outlined and presented to
the City Council.
4.
The
Licensee has acted to the City’s detriment in fostering economic growth by
providing unreliable service in failing to open for a previously scheduled
event.
5.
The
Licensee has violated the rules established by the Michigan Liquor Control
Commission as set forth in the notices provided by the Michigan Liquor Control
Commission.
6.
A
member of the Licensee has filed numerous complaints with the Police Department
of illegal conduct transpiring on properties also owned by the Licensee.
7.
The
City of South Lyon Water Department shut off the water to the Bella Luna
establishment as of February 26, 2008 as the result of unpaid water bills.
VOTE:
MOTION CARRIED UNANIMOUSLY
CM
2-2-08 – RESOLUTION - REQUESTING THAT THE MICHIGAN LIQUOR CONTROL COMMISSION
REVOKE LIQUOR LICENSE NUMBER 162503-2007
WHEREAS a public hearing was
conducted on February 26, 2008 regarding the Class C Liquor License number
162503-2007 held by Waldenmayer & Coffee, LLC; and
WHEREAS proper notice of the
hearing was given to the licensee, and the licensee being given its due process
rights including notice of the allegations, the ability to examine and present
evidence, confront adverse witnesses and be represented by an attorney; and
WHEREAS the South Lyon City
Council having examined all the facts and being otherwise fully advised; and
WHEREAS, the South Lyon City
Council finds that the Liquor License is not being used to foster economic
growth, or in the best interest of the City; and
WHEREAS, the License is not
being utilized within the limitations of the laws of the State of Michigan; and
NOW THEREFORE BE IT RESOLVED
that the City Council of the City of South Lyon hereby makes the finding of
facts set forth in Exhibit A.
NOW BE IT FURTHER RESOLVED
that the City Council of the City of South Lyon does hereby request that the
Michigan Liquor Control Commission revoke the license of the above-mentioned
licensee.
VOTE:
MOTION CARRIED UNANIMOUSLY
ADJOURNMENT
CM 2-03-08 – ADJOURNMENT
Motion by
Selden, supported by Morelli
To adjourn the
meeting at 7:37 p.m.
VOTE:
MOTION CARRIED UNANIMOUSLY
Respectfully Submitted,
John
Doyle, Jr.
Julie C. Zemke
Mayor
City Clerk/Treasurer