Note: This is part two of a series taking a look at the controversy surrounding Red Dogs, read part one here.
WRIGHTSVILLE BEACH — In April of 2019, despite the town of Wrightsville Beach’s best efforts, Red Dogs was granted a temporary alcohol permit allowing it to re-open as a private club — with some restrictions in place.
But the town once again took issue with the bar’s operation, again citing zoning noncompliance.
“5B North Lumina (Red Dogs) upstairs was originally approved by the Town for retail sales (t-shirts, clothing, etc) in the late 90s. Soon after, that use was abandoned and 5B North Lumina was converted to a bar with no zoning approval given by the Town. Red Dogs opened under new owners in April of this year after being closed for roughly 16 months. The Town requires an application for a Certificate of Zoning Compliance be completed per 155.1.12.3 of the Town Code,” Town Manager Tim Owens said.
In North Carolina, the state maintains sole discretion when it comes to issuing ABC permits. But, the town does get a chance to offer its opinion on the matter and it is taken into account before permits are issued.
The state also completes a pre-permit investigation into establishments before granting any such permit, so it is not as simple as asking for a permit and receiving one. During this investigation, the town strenuously objected to the issuance of any permit to Red Dogs based on the violation of the town’s zoning ordinance, according to the pre-permit investigation.
But it was not just the fact that the bar would be operating outside of zoning compliance that the town objected to. Chief of Police Dan House also cited previous criminal problems the town has dealt with over the past several decades as a reason to deny the permit.
“For many years the town has been required to employ police personnel over and above that normally required to patrol the town due to the drunken behavior of customers of this facility. There is simply no justification for the issuance of a permit to sell alcohol to a location that over a period of many years has caused the town to incur extraordinary expenses in order to regulate the behavior of the customers of this facility,” Former Town Attorney John Wessell wrote to the ABC Commission in January of 2019.
Despite the town’s objections, apparently the ABC Commission did find justification and issued Red Dogs its temporary permit — which is due to expire on Oct. 31.
In response to the issuance of the temporary permit, the town decided its next course of action would be to challenge the state but, as they found out, they had no standing, according to the state.
Taking on the state
When the ABC Commission issued the temporary permit to Red Dogs in 2019 the town challenged it with the Office of Administrative Hearings, a state-level office reserved to hear challenges to these types of issues — except — not in this case.
In June the town filed a ‘Petition for a Contested Case Hearing’ challenging the issuance of the permit.
Upon doing so, the ABC Commission filed a motion to dismiss based on the fact that the permit was only a temporary one and the fact that the Office of Administrative Hearings lacked subject matter jurisdiction.
A month later, Judge William Culpepper III ruled in favor of the state and granted the dismissal for the request of a contested case hearing. The reason Culpepper dismissed the case was based on the fact ‘the issuance of a temporary permit is not a contested case.’
In layman’s terms, the decision said because the permit was only temporary the town was not an aggrieved party.
But the town staff was not happy with this decision.
After the denial from the OAH, Wrightsville Beach filed for judicial review of the dismissal in Superior Court. Essentially, this process asks a judge at a higher court level to review the decision of the OAH — that case is still pending. According to OHA records, the town now argues since the state approved the extension of the temporary permit, it is no longer considered a temporary permit, and therefore subject to review by the OHA.
“The Office of Administrative Hearings (OAH) is an independent quasi-judicial agency that was established to provide a source of independent Administrative Law Judges (ALJ) to preside in administrative law contested cases. It was created to ensure that the functions of rulemaking, investigation, advocacy, and adjudication are not combined in the administrative process,” according to the organization’s own website.
The cases are still currently pending and at the time of publication, no decision has been made.
Shortly before the publication of this article, the ABC Commission granted Red Dogs a permanent permit. Now, it appears the town does have standing in an OAH case, but it also means the previously cited case decision of Re: Application of Melkonian v. Board of Adjustment of the City of Havelock can be applied — that case’s precedent does not appear to support the town’s efforts, although only a judge can officially determine how to apply it.
Complaints and crime
While it might seem to some that the challenges to Red Dogs are personal, previous actions of bar patrons have been an issue in the past. According to documents provided to the ABC Commission, from 2016-2018 alone, there were 36 calls for service to Red Dogs.
Of these calls, eight were simple assaults, six were for larceny, 13 for dunk and disorderly, and one call each for assault inflicting serious injury, drunk and carrying a concealed weapon, and trespassing.
However, seven of the eight assault cases were dismissed, and there were only two major issues, once resulting in injury and involving weapons, according to ABC records.
It’s not just the town opposing the bar, residents have also officially offered their opinions on the club and requested the ABC Commission reject the application.
One of the complaints of residents who did reach out to the commission was the fact that Red Dogs was a ‘Hip-hop bar.’ One resident, Bobbie Edwards, wrote, “This is a residential beach and strongly advise u [sic] not to let red dogs open as a hip hop bar. We Don’t nee that sort of element as it will bring unwanted gangs etc to our beach.”
And this was not the only mention of the type of music or clientele the bar attracts as being negative.
Another resident, who did not provide a name, wrote, “As a long-time resident, I encourage you to please look carefully into the issues our small community has had with the ‘hip hop’ bar Red Dogs … Red Dogs for years has attracted gang members and drugs.”
Double standards, difficult requirements?
The town’s aggressive opposition to Red Dog’s is unique considering there are several other private clubs operating in the town within the same zoning district as Red Dogs.
It’s worth noting that the Town of Wrightsville Beach does not allow any private club by right whatsoever. There is, however, a zoning district in the town called PC (private club) — but even in this zoning district, getting a club approved is a difficult process.
In order to even be zoned PC, a piece of property must meet the following criteria:
- Minimum Lot Area — 24,000 Square Feet
- Minimum Lot Width — 150 Feet
- Front Yard Minimum Setback — 15 Feet which shall be developed for sidewalks, grass, plants, and necessary entrances, exits, and driveways.
- Side Yard Minimum Setback — 7.5 Feet
- Rear Yard Minimum Setback — 7.5 Feet, No portion of any building shall be closer to the street or highway than 15 feet.
- Principal Building Height — No building shall exceed 40 feet in height. Church spires, antennas, chimneys, and similar accessories to buildings are exempt from this limitation.
- Accessory Building — May be placed on a lot provided that the building shall be 7.5 feet from the principal building and located behind the rear building line.
- Frame Structures — A frame structure may be erected in a number two fire district if there is a minimum setback of 15 feet on the side, rear, and front yards, and a two-hour firewall is provided for walls that face the wall of another structure or adjoin a lot where another structure may be built. If a property owner provides a setback of 30 feet from all property lines so that no structure may ever be erected within 30 feet of the proposed or existing structure, then the two-hour firewall may not be required.
These requirements make it difficult for properties to get the PC zoning designation.
Even if someone managed to get their property zoned PC, a private club would still not be permitted by right, instead, the town requires a conditional use permit before allowing a club in the PC district.
In fact, according to documents obtained through a public record request to the ABC Commission, a representative Red Dogs argues the conditional use permit was created with the intention of preventing the state from issuing private club permits in the Town of Wrightsville Beach.
For example, the requirement forcing private clubs to be located at least 15 feet from any right of way makes it almost impossible for any business, especially those downtown, to meet since land is limited and buildings are typically located just feet from sidewalks and streets.
As of now, there are only three areas zoned for private clubs.
“The private club zoning district currently only applies to the Surf Club, Hanover Seaside Club, and the Carolina Yacht Club,” Owens said.
But there are more than just these clubs operating in town.
“The private clubs that I am aware of in Town are The Palm Room, Lagerheads, Red Dogs, and Jimmy’s at Red Dogs,” Owens said.
These clubs are not in zoning compliance either.
None of the town’s private clubs located within the C-1 district have been issued a certificate of zoning compliance. But according to Owens, he believes these businesses are okay to operate since they are ‘grandfathered’ in.
When asked if any of the other clubs, would actually meet the requirements to get a certificate of zoning compliance if they were required to apply for it, Owens said, “I do not know the history of the other private clubs. I have not had to review a request for a private club in any other location so I cannot speculate whether they do or do not meet the ordinance.”
An expensive endeavor
As anyone who has gone to court knows, litigation is an expensive endeavor and when it comes to fighting Red Dogs, it is speculated by the owners’ attorneys that the town has spent hundreds of thousands in legal fees.
But according to Owens, just how much the town has spent is not known.
“I do not know how much the Town spent on legal fees almost 20 years ago. The most recent challenge against the ABC commission is not even close to that amount,” Owens said.
But that challenge against the ABC is far from over. So when it is all said and done just how much taxpayer money the town will spend battling one bar is unknown — and the amount could continue to increase if the courts do not rule in favor of the town and leaders continue challenging the bar.
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