757: WHY DOES THIS HAPPEN !!! CAFE IS NOW CLOSED AND BAR IS OPEN TONIGHT!! GO!!

By Harry Minium
The Virginian-Pilot
© August 19, 2009

NORFOLK

Hours after the City Council rescinded the licenses of two Waterside venues to serve alcohol, Have a Nice Day Cafe defiantly opened its doors Tuesday night, and with music blaring and strobe lights in motion, served alcohol to patrons.

Bar Norfolk, which also lost its license, will also open today as scheduled, said Kevin Martingayle, a Virginia Beach attorney who represents the night clubs.

"Both establishments still have licenses from the state to serve alcohol," Martingayle said. "The city can't take away the right to serve alcohol. That's a state function."

The city claims the right to license establishments to sell alcohol under the state code. Martingayle said the city can fine the establishments for a code violation but can't shut down their ability to sell alcohol.

City Attorney Bernard A. Pishko called the clubs' decision to open Tuesday "a flagrant violation of the law" that carries a penalty of $1,000 per person every 10 days. He said the city will file suit to have both venues fined.

"If 10 people are working there tonight, they just ran up a criminal violation of $10,000," Pishko said.

Martingayle said members of the Norfolk Bar Task Force did an impromptu inspection at Have a Nice Day Cafe late Tuesday night but no citations were issued. He said he talked by telephone with Deputy City Attorney Cynthia Hall of the task force, telling her that the establishment had a valid ABC license and thus was operating legally.

After a protracted debate Tuesday, the council voted 6-1, with Councilwoman Theresa Whibley dissenting, to deny both night clubs the right to serve alcohol.

City leaders say closing the clubs would go a long way toward cleaning up Waterside's image, which was tarnished this year by a deadly shooting in the Waterside parking garage.

City Manager Regina V.K. Williams and Planning Director Frank Duke told the council that both venues have been cited for repeated state and city code violations. That contention was refuted by speakers from both establishments.

Hall told the council that both venues had recent infractions, including serving alcohol to underage drinkers and inebriated patrons. Have a Nice Day Cafe also was cited for not paying admissions taxes, having kitchen workers without health permits, and employing a felon as a manager.

Pishko said one of the most alarming problems was that the bars attempted to book bands "known for inciting crowds to commit violence." He would not identify the bands.

When Hall found out about the bands, she was able to persuade the clubs to cancel them, Vice Mayor Anthony L. Burfoot said.

Whibley and Councilwoman Daun S. Hester complained that they did not learn about allegations of violations until Tuesday.

The Planning Commission was not given information on the infractions when it unanimously approved the permits for both venues in June. Restaurant officials said they had no idea the licenses were in jeopardy until reading about it on The Virginian-Pilot's Web site Monday night.

Martingayle said the city ambushed his clients.

"My question is, was it on purpose, or did someone with the city drop the ball?" Martingayle said. "It appears to me to be intentional, that they were hoping to lull the applicants to sleep.

"If that's what happened, it's a sleazy tactic."

Martingayle was retained by the clubs' owners Tuesday because their regular attorney was out of town. He asked the council to defer the matter for two weeks.

About 50 or so employees stood in council chambers when Martingayle spoke.

Councilman Barclay C. Winn proposed that the bars be given two more weeks to operate so that employees could find other jobs, but Mayor Paul Fraim, Whibley and Burfoot voted no, leaving Winn one vote short.

Fraim argued against any delay. "We've permitted stuff at Waterside we haven't allowed anyplace else in the city," he said. "The newspaper this morning reported there were nearly 300 calls for assistance at Waterside in one year. We would never allow one establishment to have that many calls.

"We have given them huge latitude. We need to take control of the situation."