DELAWARE COUNTY ALCOHOLIC BEVERAGE BOARD PUBLIC HEARING MINUTES NOVEMBER 5, 2009

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1 The Alcoholic Beverage Board of Delaware County, Indiana, met for a Public Hearing, Thursday, November 5, 2009 in the Delaware County Commissioner s Court Room located in the Delaware County Courthouse, 100 West Main Street, Muncie, Indiana. Board members present: John Barchak, Indiana State Excise Officer Tom Rector, Board President Tom Simpson, Board Secretary Mike Jones, Member Board President, Tom Rector, opened the 8:20 a.m. Mr. Simpson made a Motion to approve the Minutes from the September 3, 2009 Hearing as received. Mr. Barchak seconded the Motion. The Motion was carried by a unanimous vote. There were no remonstrators present. Mr. Barchak swore in applicants and/or their agents. The Renewal Applications with no violations were as follows; DL Save-On-Liquors 1401 S Batavia Ave. Muncie RR Maplewood Golf Course 4261 E. CR 700S Muncie RC Knights Of Columbus # Purdue Ave. Muncie RR Workman s Bar 809 W. 8 th St Muncie RR New Szechuan Garden 1312 W. McGalliard Rd Muncie RR Heorot Pub & Draught House 219 S. Walnut St Muncie RR Pete s Duck Inn 721 W. Walnut St Albany RR Puerto Vallarta Mexican Restaurant 3505 N. Wheeling Muncie DL Save-On-Liquors 1700 E. Memorial Dr Muncie RR La Hacienda 2620 S. Madison St Muncie RR Ro-Jac s 3206 S. Madison St Muncie RR My Place 2068 S. Hoyt St Muncie RH Puerto Vallarta Cantina 4000 S. Broadway Muncie RR The Triangle 1634 Kirby Ave Muncie DL Kmart # E. McGalliard Rd Muncie Mr. Jones made a Motion to approve the Renewal Applications for the above, as requested. Mr. Barchak seconded the Motion. The Motion was carried by a unanimous vote. 1

2 The next application, with a violation, was addressed by Mr. Barchak; RR Village Inn 2221 E. Jackson St Muncie Mr. Barchak noted this application was also scheduled for a Transfer of Ownership during this Hearing to the new applicant of Jackie Marshall, Inc. D/B/A Village Inn 2221 E. Jackson St Muncie. Jacquelin S. Marshall was present at the Hearing. Ms. Marshall said that she had a Management Agreement with P & V Enterprises, Inc. and was able to represent them. Ms. Marshall brought a letter to the Hearing advising the Board that Ms. Roberts could not attend the Hearing because of illness. The Board questioned Ms. Marshall about her knowledge of anything to do with the John Neal investigation that the Village Inn property was tied into. She said she knew the property was tied into the investigation but she knew nothing else about it. It was noted the Inn has been closed for about three (3) years. Mr. Jones questioned whether it had been opened during the last three year time period. Mr. Simpson noted that it might have been reopened but he did not believe there had been a liquor license there at the time. Terry Troxell, Del. Co. Health Dept., noted to the Board that after the John Neal investigation the bar was closed and then reopened under the name of Static Lounge. He said there had been a written agreement. He said there had been liquor and food, noting that it had just recently closed about six (6) months ago. After further discussions and questions Mr. Troxell explained the following; Six months after the investigation started and the building was closed it reopened under a written agreement with Garrison. Mr. Barchak asked if the Board was looking at the end 2005, early Mr. Troxell responded that he would have to look at this records. Mr. Barchak asked for his best recollection and Mr. Troxell said yes. Mr. Rector questioned if there were any current fines or occurrences? 2

3 Mr. Barchak responded that he understood everything regarding this license has been satisfied. He noted that if not, upon this Board s approval, the issuance of the permit would be tied up in Indianapolis if there are any tax issues, fines due, etc. Mr. Simpson questioned if the building and permit was owned by John Neal or not. Mr. Barchak said it was his understanding that at one time they were to his knowledge there was a go-between in there somebody operating under a management agreement or manager s questionnaire, managing the establishment. Bruce McLaren, attorney, was present. He noted at the time in question he represented Pat Jackson and said that she was buying the property, using her own money, her own efforts, etc. He said she was purchasing it from John Neal and did note that she did have gambling machines in the business. Mr. McLaren said that Ms. Jackson was purchasing the property from John Neal and Mr. Neal had purchased the property from Joyce Clevenger. Mr. Barchak asked Ms. Marshall if she had any family ties to John Neal. Ms. Marshall answered No, I do not. Mr. Barchak asked Ms. Marshall if she had any contact with John Neal. Ms. Marshall answered that she has spoken to him. When asked what that was in regards to, Ms. Marshall responded, how he has been. She did say, in response to Mr. Barchak s question, that she does consider her a friend of John Neal s and has known him for maybe 20 years. Mr. Barchak asked Ms. Marshall if John Neal had ever loaned her any money Ms. Marshall said, No, he has not. Mr. Barchak asked Ms. Marshall if John Neal has ever given her a gift of any type Ms. Marshall said, No. Mr. Jones made a Motion to approve the renewal of RR Mr. Barchak said he would like to amend the Motion that the renewal would be for only one (1) year. Mr. Jones approved the amendment. 3

4 Mr. Rector seconded the Motion. The Motion was carried by a unanimous vote. RR Transfer of Ownership Ms. Marshall advised the Board that the name of the bar will continue as The Village Inn and it will operate as it has in the past with a pool table, touch machines, and 13 tickets. Ms. Marshall said she had no questions regarding gaming. Mr. Barchak said he wanted to be clear that Ms. Marshall knows what the law is, pertaining to gaming what s lawful gaming and what s unlawful gaming. He said he didn t want to see her get into trouble in the event the requested transfer takes place. Mr. Jones said that he understood that Ms. Marshall was present representing the owners and asked her who the owners are. Ms. Marshall said Cheryl Eagan. When Mr. Barchak questioned Ms. Eagan s interest in this permit, Ms. Marshall said that is who she is going to buy the business from. Mr. Barchak spelled out exactly what Ms. Marshall is buying; the property, the equipment, and the alcohol beverage license from Cheryl Eagan. Ms. Marshall said this was true. Mr. Barchak said he understood the transfer was taking place between P & V Enterprises, Inc. D/B/A Village Inn. Mr. Barchak questioned who the shareholders of the corporation are. Ms. Marshall responded it would be Pat Roberts and Vicky Massey. It was determined that Pat Roberts and Vicky Massey owns the liquor license and Cheryl Eagan owned the physical location (land) according to what Ms. Marshall understands, noting that Ms. Massey is John Neal s daughter. It was noted that Ms. Marshall thinks she is going to buy the property outright, but it has not been deeded to her yet. Ms. Marshall said the purchase price is $175, and includes all that was noted by Mr. Barchak, i.e. alcohol license, property, and contents. Ms. Marshall advised the Board that she had no paperwork with her to reflect the new transaction. Mr. Barchak asked Ms. Marshall to tell the Board what paperwork/records of transaction she has from Cheryl Eagan to herself to convey the property. Ms. Marshall said she has the information in the car. 4

5 Mr. Simpson made a Motion to table this request until later on in the Hearing so the Board may move on to other business while waiting for Ms. Marshall to return with her records. Mr. Jones seconded the Motion. The Motion was carried by a unanimous vote. RR Jokers Wild 2206 S. Madison St Muncie Mr. Barchak noted this was a continuance from October 1, 2009 meeting. Joan Harty was agent present. She said the fine had to do with the lack of proper nipple coverage of a dancer; she did not have latex on properly. Mr. Barchak asked Ms. Harty to go back to Friday, November 21, She said that was all taken care of at that time, noting that all of the permits that are needed to serve liquor in the establishment were not posted as they should have been. They are now. Mr. Barchak noted the law states that there must be a non transparent coverage on the nipple. Ms. Harty said she would like to have that in writing somewhere and posted because they have had problems with this issue from the beginning they keep getting different answers. Mr. Barchak read the Incident Report EX into the record. Ms. Harty said she is trying to get an Excise Officer to come into her business and talk with all of the employees. She said any Monday or Tuesday between 3:00 5:00 they would be glad to have someone come in and speak to the employees about State Law. In response to Mr. Rector s question as to what do they do in her business to make sure the employees are following the law, Ms. Harty said that you have to sit on them noting that you just have to stay intact with them all of the time. Ms. Harty said that most of the girls are immature young women with a lot of growing up to do and they just forget. Gary Warner, Manager, was sworn in. He stated that during the night he looks at the girls to see if they have their covering on. If not he instructs them to go put it on. He advised the Board that the girl from the above report was let go the evening the business was fined. Mr. Simpson questioned if management had thought about putting a different system in place for checking the girls like specifically checking at 9:00 and at 12:00, etc. 5

6 Mr. Warner said it was posted at the top of the board that has the order of the girls on it. He noted that he is busy running the bar and bartending, noting that his hands are pretty full. He said he is looking to have an officer come into their establishment and show the girls how to apply the latex so it will stay on better. Mr. Barchak gave them his card with office and cell phone numbers on it in case they don t get in touch with an officer to do this program. Mr. Simpson and Mr. Rector both voiced concerns about Jokers Wild having the same violations every year and strongly suggested that management change how the girls are being checked before going onto the floor. Mr. Simpson made a Motion to approve the renewal of RR Mr. Jones seconded the Motion. Mr. Barchak asked to entertain the one (1) year renewal option. Mr. Simpson and Mr. Jones both agreed to the amendment to their Motion. The Motion was carried by a unanimous vote. Mr. Simpson made a Motion to remove from the table and reopen RR Transfer of Ownership. Mr. Rector seconded the Motion. The Motion was carried by a unanimous vote. Ms. Marshall gave the Board a copy of the Agreement For The Purchase And Sale Of Real Estate And Assets. Ms. Marshall advised the Board that no one besides herself is involved with the Jackie Marshall Inc. when questioned by Mr. Rector. Ms. Marshall answered Mr. Simpson, as to her background, that she had worked at The Village Inn when Pat Roberts owned it for about 4 or 5 years. Mr. Barchak asked Ms. Marshall if she was financing this purchase and who, or through, what entity. Ms. Marshall said yes she was financing the purchase herself but she had not gotten to where or who she would be going through yet. Mr. Barchak noted the purchase had not been consummated yet and asked when she planned on this happening. Ms. Marshall answered when everything gets straightened out. 6

7 Ms. Marshall said she has arraigned monthly payments to Cheryl Eagan in the amount of $1, reading the amount from the Agreement that she had brought to the Board. Mr. Rector pointed out in the Agreement, under PURCHASER AGREES: 1. Purchaser agrees to purchase free from all liens and encumbrances the following assets: A. Indiana Alcoholic Beverage Permit No. RR B. The assets of the business known as Village Inn. Mr. Rector questioned the Agreement being between Ms. Marshall and Ms. Eagan therefore questioning whether Ms. Marshall is purchasing the alcohol permit from her. Ms. Marshall responded that that would be purchased from P & V. Mr. Rector questioned why that is part of the Agreement that Ms. Marshall brought to the Board. Mr. Barchak asked if Ms. Eagon was present, which she was not. Mr. Simpson noted a couple of concerns for the Board are; the Agreement appears to be between Ms. Marshall and Ms. Eagon and includes the purchase of alcohol permit RR as part of the Agreement even though said permit is, according to the Board s records, owned by Patricia Roberts, whereby Ms. Eagon has no ownership of the permit. Mr. Simpson said another concern is the Agreement says, and he reads, A. A down payment is not being required; however, as additional consideration and in lieu of making a down payment, Purchaser agrees to use Video Coin-Op Services and/or Muncie Coin, Inc. for all of their entertainment and amusement devices. Mr. Simpson questioned if that was a contingency of Ms. Marshall purchasing the business. Ms. Marshall responded that she does not have to do that. Mr. Simpson pointed out that Muncie Coin, Inc. is Ms. Massey s business. Mr. Barchak asked Ms. Marshall for a ball park time frame of when she believes she will have her financing available for this. She responded, within a month. She said she has spoken with different banks and insurance companies. She said she has not talked with any individuals concerning financing when asked by Mr. Barchak. After questioning from Mr. Simpson it was noted that Ms. Marshall intends to purchase the business on contract, not secure financing from a bank, the proceeds from the operation of the 7

8 business in turn are going to pay the payments to the seller. Ms. Marshall agreed to this scenario. Mr. Rector questioned if Ms. Marshall had an expected start/open date and Ms. Marshall said she would like to open within the month. Mr. Barchak asked Ms. Marshall what was keeping her from opening. She said getting license transferred, noting that she did receive, in the mail, a letter to operate and Mr. Barchak noted that she did have a Management Agreement with P & V Enterprises, Inc. The final inspection has been made and approved at the location which should have made the permit that was in escrow available to be removed from escrow. He said, as he recalled, the license was to be ed to the business, 221 E. Jackson St. He asked if Ms. Marshall has received that license yet. She said she had received the extension letter, which Mr. Barchak said gives her the authority to operate. It was noted there is money owed for liquor and that has not been resolved. So National and Olinger will not deliver any liquor until that bill has been paid. Mr. Barchak advised her that she can take COD deliveries for beer. He just wanted to be certain that nothing from State is holding her up from opening; it is, in fact, unfulfilled obligations from her predecessor, being P & V Enterprises, Inc., with outstanding debt with Olinger and/or National. In response to Mr. Jones question, Ms. Marshall noted that Mickie s Tax Service drew up the Agreement. Mr. Jones asked Ms. Marshall if she had an attorney representing her and she said, no. Mr. Barchak questioned if Ms. Marshall would like to obtain an attorney and return to the next ABC Hearing in December. Mr. Rector said he is concerned with the Agreement including the purchase of permit and Ms. Eagan not owning the license. Lou Coulter was sworn in to speak. Mr. Coulter explained as follows; Back when Cheryl sold The Village Inn to Patty, Patty and Vickie formed a corporation and they obtained the license. Quite a few years ago Patricia couldn t make the payments on it so she relinquished the rights to the license. They left the license in Patty s name for all these years, he doesn t know why. He noted that is why the license is in a different name than the business, saying that, technically the Cheryl owns the license. 8

9 Mr. Coulter said that when you buy a permit, like Ms. Marshall is trying to today, you put the license in your name and at that time you also sign consent to transfer back to the original corporation. Mr. Barchak noted the transfers have not been conducted as they should have so for lack of a better word; the transactions have not been clean. So now there are middle parties involved that hold interest in the license and the license holder herself does not hold true ownership. Mr. Barchak noted they are trying to eliminate one step in the process of transferring the license and said for the sake of clarity, it clouds the issue. Mr. Barchak said he believes what would clear this up is the Board needs a transfer from P & V Enterprise, Inc. back to Cheryl Eagan and then from the entity of Cheryl Eagan to Jacquelin Marshall, Inc. Mr. Barchak went on to say that he believes it would be in the best interest of Jackie Marshall, Inc. to go acquire counsel, seek some guidance, and see what she needs to find out. Mr. Barchak said he believed the Board would like to see this transaction be clean, clear cut, and concise. Mr. Simpson reminded Ms. Marshall of the sentence in the Agreement spelling out Purchaser using Video Coin-Op Services, etc. He said when she came back he would like more clarification on this also. Mr. Rector questioned if Patricia Roberts or Vicky Massey would be assisting in any way in this business and Ms. Marshall replied No. Mr. Simpson brought up the fact that the Board already approved the renewal of the license under P & V Enterprises, which now ownership is questionable, what happens if issues not cleared up. Mr. Barchak noted the renewal is in place but suggested an investigation as far as the ownership of the license can be done and could possibly result in administrative charges regarding false ownership. He observed all the issues surrounding this permit and believed it would behoove the Board for an investigation to be done. 9

10 Mr. Barchak said he believed the Board should look at the intent; what was the intent between Cheryl Eagan and P & V Enterprise, Inc. Mr. Barchak said the Board needs facts to look at to see if there was any criminal intent involved. Mr. Jones made a Motion table RR until the next ABC Hearing dated, December 3, Mr. Simpson seconded the Motion. The Motion was carried by a unanimous vote. The Hearing of adjourned at 10:00 a.m. Respectfully Submitted, Patricia Lackey, Office Manager Delaware County Commissioners 10

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