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Wednesday, October 11, 2017

Monday, October 9, 2017

ABC CONTROL BOARD IN A PICKLE OVER DENIAL OF PERMIT TO SEARCY RESTAURANT - DECISION REEKS OF DISCRIMINATION

 
EL ALMACEN - A VICTIM OF DISCRIMINATION BY THE ABC BOARD


We previously posted about the blatant discrimination the ABC Board displayed in their denial of a permit to El Almacen in Searcy. You can read those posts by clicking here and here.

The restaurant has filed an appeal in Pulaski County Circuit Court and is represented by crackerjack attorney Stephen Morley, who rarely loses any case before the ABC Board or in an administrative appeal.

 
ATTORNEY STEPHEN MOREL


Their Petition for Judicial Review can be viewed by clicking here.  Their Motion for Remand can be viewed by clicking here.

The ABC is represented by their new attorney, Michael Nelon Harry.

The ABC's response can be viewed by clicking here.

Apparently Harry left the law firm of Rieves, Rubens & Mayton for a steady, predictable income from a public agency like that of his older wife, Jessica Runkle Harry, a Victim Assistance Coordinator in the Pulaski County Prosecuting Attorney's Office.


JENNIFER RUNKLE HARRY AND HER YOUNGER HUBBY MICHAEL NELON HARRY AT OAKLAWN



El Almacen was denied a license during an appeal hearing before the ABC board on August 16. 2017 based on the placement of the required notice on the establishment to inform the public of its intent to pursue private club status, which would allow alcohol by the glass to be served with a meal to members of the club.



The ruling stated, "Based upon all the testimony and evidence discussed and findings of fact above; the board concludes that the application of Alisha Jones for a private club permit for El Almacen should be denied because the requirements of Section 1.26: Notice To Be Posted At Premises were not followed, and that the same should be denied."



On the same day, the board approved an application for another Searcy restaurant, the Rock House, which is currently serving wine and beer by the glass.



The Rock House's ABC hearing revealed that its notice was placed in a similar location as El Almacen's inside the entrance; however, on record was an ABC employee who admitted to directing the restaurant exactly where to put the notice.



After the decision, board Chairman Daniel Greenberg said he would consider revisiting El Almacen's application at the next board meeting if the recording of the hearing confirmed that a similar statement had been made by Jones on being told where to place the notice.



On September 20, 2017 after Colton's Steakhouse was granted a permit by the ABC board, it voted to not revisit El Almacen's application -- even though Greenberg was in favor of giving the restaurant a second hearing.



In El Almacen's plea to the court, it contends that it believes the ABC board did not realize when making its decision not to readdress the matter that an affidavit from an ABC employee exists that confirms restaurant employees were directed by the employee on where to place the notice.



According to the affidavit, sworn by ABC enforcement agent  Shelby Clark, Clark went to the restaurant at 1805 E. Race Ave. on May 8, 2017 to confirm the posting of the required notice and directed where to place it, because the front door was not an option for various reasons.

 
ABC ENFORCEMENT AGENT SHELBY CLARK
 

"We discussed the best place for the notice. There is no awning, porch or other cover over the front door, and we were concerned that the cardboard notice would be damaged if it were placed at that location; and that the cardboard notice might not last 30 days," the affidavit stated. "There was also a concern about whether or not the notice could be placed on the door in such a manner so as not to damage the door."





The notice ended up being placed on a window to the left of the front door, which was within about 10 feet of the front door, Clark said in the affidavit.






Agent Clark took these two photographs of the applicants and her notice.



JONES AND HER NOTICE AT EL ALMACEN - PHOTO TAKEN BY AGENT CLARK





El Almacen was the only one of the three Searcy restaurants denied by the board after applying for licenses this year before a new law went into effect.




The law passed by the General Assembly in April sends private club applicants to the city or county government in which a restaurant wishes to obtain a license before getting passed along to the ABC. A city council or a quorum court will review the request, and if it is approved then the application would be directed to the ABC.


The ABC Board has screwed the pooch on this one and no doubt Attorney Morely will easily win another victory over the ABC and their rookie attorney Michael Nelson Harry.