Thursday, October 16, 2008

Alcoholic Beverages: Oh, No, Topless Dancing in Kokomo

Ah, the headline has all the shock of this post. What this post does have is the intersection of newspapers reporting on legal issues and the actual Court of Appeals opinion, and some insight into the licensing of adult entertainment bars.

Not that the Kokomo Tribune's Ultimate Place wins court battle is all that inaccurate but there is what I call fudging to tell a clean story. I have a link the actual opinion below, and reading that it seems clear to me that the remonstrators did not have the evidence necessary to win.

First, some quotes from the Kokomo Tribune:

"The court of appeals ruling was a blow to local remonstrators, led by two pastors at Crossroads Community Church.

The pastors, Kevin Smith and Jeff Harlow, reluctantly gave up a previous remonstrance against the Dumoulin family after receiving certain assurances in 2001.

While Smith, Harlow and the other remonstrators may have considered those assurances — offered in writing by Dan Dumoulin II’s parents — binding, the court of appeals disagreed.

Instead, the judges last week ruled Dumoulin II was never a party to any agreement his parents made with the remonstrators.

The 2001 agreement, the judges said, was that Hoosier LLC, the corporation owned by Joan and Dan Dumoulin Sr., would not turn what opened as a sports bar into a strip club.

Arguments still rage as to whether Joan and Dan Sr. honored the second part of the agreement. In 2001, they promised that remonstrators would be notified if Hoosier LLC ever sought to transfer the liquor license."


The ruling notes that Kokomo attorney Mark McCann, who in 2001 had represented the remonstrators, acknowledged receiving oral notice of the pending liquor license transfer from fellow Kokomo attorney Dick Russell, prior to the transfer request being heard by the Howard County Alcoholic Beverage Board.

The remonstrators insisted the agreement was that the notification would be in writing. The appeals court was, however, satisfied that proper notice had been served, “albeit oral rather than written.”

The appeals court, like Burke, also rejected claims Joan and Dan Sr. never made a “bona fide” sale of the club to their son. An ATC hearing judge had originally ruled no paperwork existed to support the Dumoulins’ claims the club was actually sold.

That point was important to the remonstrators, who tried to claim the Dumoulins — Joan, Dan Sr. and Dan II — had always intended to operate the Ultimate as a strip club, but had been temporarily thwarted by the 2001 remonstrance.
The Memorandum opinion (PDF format) cannot be used for precedent. It does have its uses to show how the licensing process works and the law cited in the case remains good law.

What do I mean by process? Take the Court of Appeals' criticism of the local alcoholic beverages board and use it figure out what was needed to win the remonstrance. Those criticisms contain the way the system is supposed to work.