After months of planning and now three separate requests to the Birmingham City Commission, Papa Joe's Gourmet Market can now move forward on new plans for a second-floor bistro.
Papa Joe's owner Tony Curtis received a bistro license in 2007 in the hopes of opening Bistro Joe's, an eatery on the grocery store's second-floor mezzanine level. Under the new deal, Lopus will operate the bistro as an equal partner, leaving Curtis to handle grocery operations.
This is the third time the issue has come before the City Commission, though it's the first time it's received approval. On July 23, the City Commission denied a similar request to add Addie & Jack's as a co-licensee after first postponing the issue on July 9.
Incident exposes a 'flaw' in bistro ordinance
While commissioners ultimately voted to approve Papa Joe's request — with Commissioners Stuart Sherman and Rackeline Hoff voting against — the issues holding up discussion were complicated: while these kinds of transactions are legal, is this what the city intended with its bistro ordinance? And how should the city handle similar transfers in the future?
Birmingham approved its bistro ordinance in 2007, allowing for up to two new bistros to be approved each year. A bistro is defined as a restaurant with no more than 65 seats indoors, a full service kitchen and seasonal sidewalk seating. Bistro owners must also sign a contract with the city and receive a Special Land Use Permit.
According to City Manager Bob Bruner, assigning a license is akin to sharing that license with another party, unlike license transfers. According to the language in Birmingham's bistro contracts, license assigments are allowed.
At the same time, Bruner said Birmingham doesn't have procedures in place for assigning bistro licenses, like it does for liquor licenses.
"I think there's a desire on the part of the commission to be standard on these issues," Bruner said.
All commissioners agreed there were dozens of policy issues that needed to be discussed, all of which surround where Birmingham wants to go with its bistro ordinance.
"This unfortunately has exposed a flaw in our ordinance which is clearly in conflict with the intent," said Commissioner Gordon Rinschler. "I think everyone agrees that we never intended this license to be flipped ... The intenton was that the ownership was part of the approval process."
Commissioner argues they shouldn't hold Papa Joe's deal 'hostage'
Still, several commissioners were concerned that a policy discussion (one that would have to be postponed) would leave Papa Joe's in the lurch.
"I don't think we can hold this particular transaction hostage until we get through this process," Commissioner Tom McDaniel said. McDaniel was one of two commissioners, next to Mayor Pro Tem George Dilgard, who voted against the initial denial on July 23.
This time, however, McDaniel and Dilgard were joined by Mayor Mark Nickita, Rinschler and Commissioner Scott Moore, all of whom agreed that the request from Papa Joe's was unique and an approval Monday was critical for Curtis and Lopus to move forward.
"This is an establishment that's kind of unique," Moore said. "It's never been open. They're not changing anything. It's a straight assignment. It's adding on a partner. I don't think any of the policy reasons apply here, and I don't see the harm in moving forward."
Kelly Allen, the attorney representing Papa Joe's, stressed that while she tried hard not to "expose the city to any negative precedent," time is of the issue.
"The bank is breathing down our neck," she said. "This development needs to get done."
Hoff agreed that time was an issue in this case, though she argued the city was moving out of order. The city should first have the policy discussion, she said, then decide whether to approve the request. Sherman agreed.
"If you're going to make a policy decision, make a policy decision," he said. "You want to do it on a case-by-case basis, do it case-by-case. We can't have both."
Commisisoners agreed to discuss the issue of transferring bistro licenses at its Oct. 22 meeting.