ELECTRONICALLY FILED

Pulaski County Circuit Court

Larry Crane, Circuit/County Clerk
2017-Sep-20 12:16:13
60CV-17-5260
C06D12 : 9 Pages
fN THE CIRCUIT COURT OF PULASKI COUNTY , ARKANSAS

MI RANCHITO OF BRYANT, fNe.

d/b/a EL ALM P.CEN OF SEARCY PLAfNTIFF

VS. NO.

DEPARTMENT OF FfNANCE AND ADMfNISTRATION,

ALCOHOLIC BEVERAGE CONTROL DIVISION DEFEN DANT

PETITION FOR JUDICIAL REVIEW

Comes now Plaintiff, MJ RANCHITO OF BRYANT, fNC . d/ b/a EL ALMACEN OF

SEARCY, Managing Agent, ALISHA A. JONES , by its attorneys, Morley Law Finn, PLLC , and

for its Petition for Judicial Review states and alleges:

1. Mi Ranchito of Bryant, Inc. d/b/a El Almacen of Searcy, hereinafter referred to as

Plaintiff, is an Arkansas nonprofit corporation with its principal place of business in Searcy, White

County, Arkans a~;. Defendant, Department of Finance and Administration, Alcoholic Beverage

Control Division, hereinafter ABC, is an administrative agency of the State of Arkansas with its

principal office in Little Rock , Pulaski County, Arkansas .

2. Thi s Petition for Judicial Review is filed pursuant to the Arkansas Administrative

Procedures Act, A .e.A . 25-15-201 et. ~ ., and venue is proper in Pulaski County.

3. On M ay 23, 2017, the Plaintifffiled an application for private club license for a restaurant

located at 1805 East Race Street, Searcy, White County, Arkansas. The application was in proper

form and was accepted by the ABC for processing.

4. On Jun~ 22 , 2017 , the Director the ABC denied the Plaintiffs application for private club

license. The Plaintiff filed a timely notice appealing the Director's decision and a hearing was held

before the ABC Board on August 16,2017.

 5. PlaintLff appeared through its ManagLng Agent, AlLsha Jones, who offered testimony

together with eight other witnesses Lncluding a law enforcement officer, a physician, and

representatives of the Chamber of Commerce . In addition, various exhibits were offered. all of

which were admitted into evidence. Despite offering substantial evidence of record through various

witnesses and exhibits, the ABC Board voted to deny the Plaintiffs application by 3-2 vote. A copy

of the ABC Board Decision is attached hereto, marked Exhibit A, and incorporated by reference

herein.

6. The denial of Plaintiffs application by the ABC was arbitrary , capricious, and wholly

unsupported by substantial evidence of record as required by A.C.A. 25-15-212 and other applicable

law.

7. The decision of the ABC Board to deny Plaintiffs application was made upon unlawful

procedure and afJected by errors of law and evidence in derogation of A.C.A. 25-15-212 and other

applicable law.

8. Plaintiff and its members are injured in their person and property by the actions of the

ABC in denying the application for private club license. Plaintiff is entitled to invoke jurisdiction

pursuant to A.C.A. 25-15-20 J , et. ~

9. Plaintiffhas requested the Defendant, ABC, prepare a transcript of the proceedings before

the ABC Board which will be filed with the Court in accordance with law.

WHEREFORE, Plaintiff, MI RANCHITO OF BRYA T, INC. d/ b/a EL ALMACEN OF

SEARCY, prays the Court enter its Order reversing the decision of Defendant, ABC, denying

Plaintiffs application for private club license at 1805 Race Street, Searcy, Arkansas, as being in

violation of A.C.A. 25-15-201, et. seq. and other applicable laws and regulations, thereafter ordering

and directing Defendant ABC to issue Plaintiff a private club license for the location cited above.
 In the alternative, Plaintiff seeks an Order of the Court remanding this matter to Defendant, ABC,

. for submission of addi tional testimony of record and clarification of find ings offact and conclusions

of law together with such other just and proper relief to which the Plaintiff may be entitled .

Respectfully submitted ,

MI RANCHITO OF BRYANT, INC.

d/b/a EL ALMAC' OF SEARCY

315 N . Broadway
North Little Rock, AR 72114
Tel : (501) 372-4314
Fax: (501) 375-3045
 STY T: OF AI H~A\'S.\S A; .e C IIOLlC Hr VERAC!t: ( O !\TROL
1515 W est 7'" Street.
Depal1rne n" of f;- inanc.e Suite 503
Little Ro ck, Ar~. a n s d s 72201
an,r Ad linis traii on Ph on e (501) 682 -110 5
Fax. (50 1 ) 682-2221
httO//\'N/w.arkcn sas. gov/dfa

IN THE MA TTER OF:

PRIVATE CLUB - NEW
APPLICATION OF ALISHA A. JONES
DBA: EL A.LMACEN OF SEARCY
1805 EAST RACE
SEARCY, A.RKANSAS

BOARD DECISION

On the 16 1il day of August, 2017, the Arkansas Alcoholic Beverage

ConI rol Board convened at Little Rock, Arkansas for its regular monthly
meeling . In attendance were Board Members Dan G reenberg (Chairman),
Mickey Po\V,~II, Jean Hervey, Jamie An de rs on. Steve Smith .

AlishR Jones appeared at the hearing represented by her attorney, Har:;y

Truman MO :J re. There also came and appeared in opposition to the application
a number 0 )- persons who appeared and were represented by /\ttorn('Y Brett
Watson .

After considering all sworn testimony, all material introduced into

evidence contained in the application file, it is found:

REVIEW OF EVIDENCE OFFERED

1. Alish] Jones testified in support of her application . Ms . Jones stated

that the current restaUrAnt emplo S Clpproximatf'ly twenty plus e mpl oyee .' a nd
has been in operation for several years and in that time hilS hosted numcrou s
corporate parties . Ms . Jones testified thclL addin g sen'icc of alcohol would on ly
serve to enhance the dining experience at the r es taurant and that she has no
intention o[ turning the restaurant into a bar or entertainment vcnue. Ms.
,Jones testified that within White County there are no other similar

I
establishments, such as a restaurant s e rving alcoholic beverages with their
meals. Ms. ,Jones acknowledged I.h8.L Lhere are currentl). [our other private
clubs in and around the Searcy area; however th ev include lhe Searcy Country
Club and theee sepamtc en tit;es that do nol se,,," rood . Ms . . Jones testi l ; lha~~IBIT
although the restaurant is located on a busy street in Searcy. that she \-vas
unware of any current trafJic issues or hazCirdous traffic conditions . Ms. Jones
testified that they currently have over one hundre d members . Ms, Jones sta te d
that the restaurant will con tinue to operate from 1 1:00 a.m. to 9 :00 p.m, Upon
cross-exam nation by Mr. Watson. Ms, Jones testified that the noti ce for the
public was :')ostecl on a window locatecl on the side of the building and not on
the fnmt claar. I'v1s. ~Jones stated the reason for posting the noti ce on the side
window \Va~'. that she believed it would be th e best place to put the notice
co nsidering there were no windows on the front door cr,trance, Ms, .Jones f It
that this placement would serve to notify all those wishing to enter the build ing
as the windmv faced all but four parking spots for the restaurant,

2. Steve Hernandes testified in support of the rriv:lte club application , 1\1r.

Hernandes :,s an eight-year veteran of the Searcy Police Department a nd
currently holds the rank of sergeant, Based on his knowlcdg( of the restaurant
location and of Ms. Jones, Mr. Hernand('~ testified that he is confident that she
is an able and adequate permit holder and will serve to follow the applicable
laws and regulations concerning a private club permit. Mr. Hernandes also
testified that he was not aware of any illega l activities in or around the
immediate cirea of the restaurant. Mr. Hernandes testified that having a privat
club permit at this location would greatly enhance the prospects of th e
residents of Searcy, giving them an option to have an alcoholic beverage with
their meal outside of the country club. Mr. Hernandes also testified that he has
been active with Ms. Jones and 1 Almacen restaurant in an annual charitable
cook out.

J. Penn), Choale testified in suppurt of the private club application. Ms.

Choate testified that she is a n attorney in the are a and has visited the f':l
Almacen re~,taLlrant man~r times, Ms, Choate testified th a t she is a member of
the country club; however , she feels that this restaurant location would greatly
serve the community, as it offers a more reasonable alternative to the vast
majority of the popUlation of Searcy .

4, Michael Johnson testified in support of the private club application. Mr.

Johnson testified that he is a longtime patron of both 1 Almacen and The Rock
House restaurant . and docs not have a personal relationship to (~ ither owner.
Mr. Johnson believes that awarding a private club permit to the proposed
restaurants would be a great advantage to the community ,

5, Charles Smith testified in support of the private club application , Mr.

Smith testified that he is an accountant in the restaurant business and
currently represents thirty plus restaurants in approximate ly ten private clubs .
Mr. Smith testified that awardin a the private club permits LO the proposed
restaurants would be a great b enefit and advantage to the Searcy communit
Mr. Smith testified that the increased revenue from liquor tax derived from the
private club sale of alcoholic beverages would greatl~>, benefit the city and
surrounding areas.

0. Roger Cargile testified in support of the private club application. Mr.

Cargilc is a l<cMax broker in Searcy and believes t hat addition of the proposed

private club in Searcy would be a greal public advant a ge aJ1C1 benefit to Sca rcy
and the surrounding area. Mr. Cargile testified that there is a st a gnant real
estat.e growth within the last five yems in Searcy a nd beli eves that the addition
of private clubs serving alcoholic bevera ges with me a ls would have a ben e fit o n
the surrounding economy in Searcy . !'vIr. Cargile te stified that he is concerned
about the economy of Scarcy with recent cvents such as s everal businesses
closing, retail business closing, industrial plants closing dO\!.m and leaving
tOW11. as well as vacancies currently at the newest and ni ce st retilll development
in Searcy . Mr. Cargile testified that he beli eves that Searcy is at a distinct
disadvantage when it comes to competing with similar sized towns sueh as
Conway ane Jonesboro . Mr. Cargile feels that the addition of private clubs in
Searcy will help level the playing field.

7. Buck Lane testified in support of the priva te club applic a tion. Mr. Lan e
testified that he is the president of the Semel' Chamber of Commerce. Mr . Lane
testified tha~ the Chamber of Commerce voteel in favor of su pporting th e private
club location in Searcy. Howeve r, Mr. Lane did also testify th a t the vote in favor
of the private clubs was an eight to seven vote by the Chamber that followed a
very h e ated debate .

8. Dr. Tim Killough testified that he has heen a resident of the Searcy area
for twenty-seven years. Dr. Killough bdiev . tha t th e addition of the private
clubs in Searcy will greatly enhance the community. Dr. Killough testified tha t
he has been disappointed with the lack of grO\vth or the Searcy economy and
believes that the addition of busines s e s in which th e ' can s e rv alcoholic
beverages w1th t.heir meals will greatly e nhance the surroundina e conomy. Dr.
Killough testified that although the Searcy Cou n try CI1..l b does offe r alcoholic
beverages, he doe s not feel that. it is an economi ca l 8lternative for the vast
majority of the residents of Searcy. Dr. Killough testified th a t although h e
cannot name any specific incidents in which potential h ealth care professionals
did not move to Searcy, it is his belief that the addition of these private clubs in
Searcy will help to lure more talented professionals to Searcy.

9. Jimmy Simpson testified in support of t.he private club application . Mr.

Simpson tes :ified that he is an attornC): in Scarcy . and that he is very active
within the community, serving on several committees and councils in Sear 'y
and the surrounding area. Mr. Simpson testified that the addition of privat
clubs in Searcy is necessary for sustainable economic growth of the area . Mr .
Simpson tes1.ified that pursuant to studies done of Se a rcy and the surroundin g
area, it is be ;ieved that seventy-five percent of the pop1..dation is leaving Searcy
to cat, drink. and shop. Mr. Simpson testified that the addition of these private
cluhs would alleviate the need and desire of ~earcy re sidents to [cave the area
and keep their money and tax dollars in Scarcy .

10. Paul Pollard testified in opposition to the private club application. Mr.
Pollard testified that he is a forty-three year resident of Se a rcy. Mr. Pollard
testified that he is in opposition to this location for a private dub, based on the
busy traffic i ~1 front of the building. Mr . Pollard te stified that in the stretch of
time from January of2014 until the prese nt elate. there have been sixty
accidents on the one-block strelc h of road th a t t.he El Alm a ccn currently

occupies. Mr. Pollard testified and introduced into evidence several maps and
pictures detailing the immediate area surrounclin~ the restaurant location as
wells as the traffic areas and city park that lies across the street from the
proposed lo::ation.

1 J. Craig Russell testified in opposition or the private cl ub application. Mr.

Russell testified that he is the Public Sa fety Director for Harding University and
has been in that position since 2001. However, he has been employed with the
University since 1995 . Mr. Russell testified that the sole purpose of him
testifying af;ainst the private club application is that he believes that the
availability of alcohol would likely be correlated with a significant increase in
crime in tht surrounding area. Mr. r.(ussell testified that several studies
support his position, specifically stating that thirty-seve n percent or al\ crime
was commit ted by peoplt under the influence of 8lcohol, and ncarly forty
percent of all fatal molor vehicle accidents occurred because a drive r was under
the influence of alcohol. Mr. Russell further testified that ninety-five percent of
all violent cime occurring on college campus s was related to someone being
under the influence of alcohol. Mr. Russell further testified that the locations of
the restaurants currently applying for private lu b permit are dangerously close
to the Harding University campus. Mr. Russell testifled that Harding niversity
students are not allowed to consume any a lcoholic beverages.

12. Dale Brewer testified in opposition to the privat club application. Mr.
Brewer testified that he is a member of the Searcy City Council. Mr. Brcwer
tcstified that it is his belief that the private clu b applications should be denied
because the ovenvhelming majority of residents of Scarcy in White County have
voted again:;t alcohol being sold in the county in previous ele c tions. Mr. Brewer
testified that other national chain restaurants that typically serve alcoholic
beverages in their restaurants have chosen t.o locate to Searcy without serving
alcoholic beverages.

13. I-(iei< Harper testified in opposition to the private club application . Mr.
Harper testified that he current.\y is employed in ministry but had been
empluyed for twenty years with Ciseo Food Service. Mr. Harper testifies that it
is his belief that allowing these private clu bs to operate in Searcy would be a
great disser-,/ice to the community. Mr . Harper testified that he is in opposition
to the private club permits strictly as a public safety issllc. Mr. Harper testifi cl
that he does not believe that allowing these restaurants to serve alcoholic
beverages under a private club permit will do much of any good to save any of
the busines;:;es or generate any economic growth in the Sear 'y area. He
testified that simply making good food and having good service would be
enough.

14. Bob F<eely testified in opposition to the private club application. Mr.
Reely testified that he is currently a professor at Harding University and a
retired Air Force Colonel. Mr. Reely testified that he did not believe that the
addition of alcoholic beverages being served at these locations would benefit
their individual businesses. Mr. Reely further testified th:)! hc does not feel like
both locations are suitable locations, due to the 'ongested nature of the traffic
in the surrounding area.

15. Jim Fuller testified in opposition (a the private club application. Mr.
Fuller testified that he is involved in the volunt e 'r community in Scarcy. He
further testified that he and his family moved to Scarev to provide their childr n
with a quality education and an alcohol-free environment. Mr. Fuller further
testified that he movecl his family to Searcy to be in an alcohol free community .
Mr. Fuller testified that he would like to s ee the Boare! deny any and all alcohol
pe rmit applications because the people of Searcy votee! against it and do not
want it in their community.

16. Robert Quattlebaum testified in opposition against the private club

application, as follows: Mr. Quattlebaum te stified that he had serve d twenty -sL,(
(26) years in the restaurant business and never served a drop of alcohol, a nd
that ir he can do it anybody can. He further testified that simply makin g good
fooel, having good service, a ne! charging a decent rate will make any resta urant
successful.

FINDINGS OF FACT

After a review of the evidence and testimony offered , the Board finds that
this application should be denied due to the fact tha t Ms. ,Jones failed to
comply witr, the requirements of Section 1.26: No tice of Application to Be
Posted on the Premises. The sec tion specifically states that a notice of the
application and a form provided and approved by the Dir e tor shall be posted in
a conspicucus place at the front entrance to the premises . Ms. Jones testified
that the notice was posted on a widow on the side of the building and not at the
entrance to the bUilding. The Board bases its finding s on the testimony of Ms.
Jones as well as exhibits submitted into the record by Mr. Watson showing lhe
exact location of the windows in conjunction with the e ntrance to the premises.

CONCLUSIONS OF LA W

Attorney Brett Walson, a t the conclusion of pre se nting his casc, made a
Motion to Dismiss based on the Board not having authority to hear the case
presently due to the passage of Act 1112 of 20 17 which sta ted that no
application~; for private club permits will be accepted withollt an ordinance from
the applicable city or county governing authority , Mr. Watson's second point in
his Motion 1.0 Dismiss was th a t the private clu b permit application should be
dismissed for failure to comply with the requirements of Section 1.26 . requiring
a notice of application to be posted at the premis es of the ABC Rules a nd
Regulations. Mr. Watson stated that the regul a tions clearly stated that a notice
of the application and form approved by the Director shall be posted in a
con s picuous place at the front entrance to the premises. Mr. Watson
contended that the notice of application was nol placed in a conspicuolls place
at the front entran ce to the premises. Mr . Watson's fined point on his Motion to
Dismiss stated that approval of the private clu b permit wou Id be in violation of
the Ameriu .ns With Disabilities Act because the notice was posted in such a
place and manner that any individual utilizing handicapped parking in front of

the establishment would not have been able to see the public notice posted in
the windo\VJn the opposite side of the building.

The Eoard took a vote on Mr. Watson's motion; the Motion to Dismiss
railed by a two to three (2-3) vote.

Based upon all the testimony and evidence discus sed ;;md Findings of
Fact above; the Board concludes that the application of Alisha Jones for a
private club permit for El Almacen should be dcnied because the rcquirements
of Section 1.26: Notice To Be Posted At Prcmises were not follO\\1cd, and that th e
same shoulcl be denied.

WHEI~EFORE, by motion made, secondcd, ancl passed by a vote of 3-2,

the application of Alisha Jones is hereby DENIED.

DONE AT LITI'LE ROCK, ARKANSAS, this 16' il day of August. 2017.

ALCOHOLIC BEVERAGE CONTI~OL BOARD

DAN GREENBERG, CHAIRMAN

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