The Merced City Council voted 6-1 Monday night to reject Marshall Bishop's appeal of the Planning Commission's denial of his conditional use permit.
Last month, Bishop, of Bishop's on the Square Restaurant, went to the commission for the permit. It was denied on the grounds of previous violations of rules and nightclub-like events at the restaurant. A conditional use permit is needed to run a nightclub.
Bishop wants to include music and dancing from 10 p.m. until 2 a.m. Moreover, he also wants to serve alcohol past 10 p.m. -- which his current ABC liquor license prohibits.
Kim Espinosa, city planning manager, said the staff also considered previous actions taken by Bishop that "displayed a disregard to city and state laws. The business would become an enforcement problem for law enforcement."
Bishop didn't return phone calls Tuesday.
At the meeting, she said the Planning Commission deemed a nightclub and a lounge as the same thing.
According to the commission's report from last month, a night club is described as a place that "provides alcohol, provides music (live or a DJ), provides an area of dancing and sometimes charges a cover charge for admission."
Since 1973, she added, there have been 10 conditional use permits granted, six of which were for restaurants that wanted to expand and include a nightclub. Four of those were allowed to include a lounge. The most recent one granted was in 2007, she said.
Espinosa also showed Facebook photos of people standing around the balcony area of the restaurant and large crowds on the ground floor.
David Thelen, Bishop's on the Square's attorney, said those were staged photos. He said the photos dealt with people who had rented out the restaurant for the evening.
"We know of no numbers that were exceeded. The fact that you ask people to crowd around to take a photo, there is no knowledge of any time exceeding the load capacity (of people)," he added.
At a packed City Council meeting Monday night, people came forward to voice their opinions for and against Bishop's appeal. Opponents of the permit said they were worried about the amount of noise coming from the establishment, as well as concerns over Bishop's repeated failure to adhere to rules that other businesses usually had to comply with.
Ryan Richard Heller, who has lived at the Merced Lofts (across Main Street from Bishop's restaurant) for the past year-and-a-half, complained of the noise. "As a resident of the Lofts during that ill-advised experimental period they were doing those nightclub events, it was absolute hell at the Lofts," he said.
On the other hand, Jon Klingborg, a veterinarian at Valley Animal Hospital, spoke in favor of Bishop. He argued Merced would benefit not only economically from the nightclub, "but we have a need to improve small businesses in our area."
In the same vein, Thelen stressed that the restaurant would be able to employ at least 10 to 13 people if Bishop were able to have the lounge. In his presentation to the council, he also showed a slideshow of Bishop's on the Square's food dishes and various patrons enjoying the atmosphere and dining.
But the majority of council members didn't seem impressed.
"You learn from your mistakes after one time of doing something bad. It doesn't take numerous times to know you did something bad," said Councilman Josh Pedrozo.
Councilwoman Michele Gabriault-Acosta said she would like to see another venture downtown like Rudy's, which featured jazz music. But, she added, "Show me you can play by the rules for a while, six to eight months. I can't support it either."
Mayor Bill Spriggs said he felt conflicted because the presentation given by Thelen and what he had seen at the meeting didn't match up.
"Mr. Thelen's presentation and what he was showing, that continuous video, just did not true up with what I had seen on the Internet and did not true up with the advertising from previous events," he said, referring to live music and DJs. "As the university grows, it's going to be very important that we have a firm handle on drinking establishments and late-night entertainment. We don't want a situation where it gets out of control."
Espinosa said the council denied the appeal without prejudice, which means Bishop could come back in less than a year after modifying his application.
Thelen said he can't speak for what Bishop will do next.
"He is going to make his own decision," he said Tuesday afternoon, noting that it was a shame the extra employees wouldn't be hired. The tax revenues the restaurant generates, he suggested, could have paid for two police officers.
On his website, Bishop describes himself as a "local boy living the American Dream." The council's decision means that dream is now on hold.
Reporter Ameera Butt can be reached at (209) 385-2477 or firstname.lastname@example.org.