Waiting-area bars allowed to continue

At its April 15 meeting, the Bethany Beach Town Council voted 5-2 to extend a provision allowing the operation of “waiting-area bars” at restaurants in the town. The contentious discussion focused on a 16-seat bar area at Bethany Blues.

Relating the history of the matter, Town Solicitor Terence Jaywork said the bar had originally been labeled as a “dessert bar” on plans for the restaurant, with a small “service bar” that was not to be used for patrons to consume alcohol while standing — a use prohibited by the town since 1995 (with some establishments grandfathered to allow such service).

Jaywork noted that the intent of the 1995 restriction had been to foster a “quiet family environment” in the town and keep alcohol service restricted to seated, dining patrons. He said Bethany Blues had operated the dessert/service bar as such for a while after it opened, but had later placed bar stools in the area and commenced serving alcohol there in a “clear violation of town code.”

The violation, he said, came to the attention of the council in February 2004, demanding the town decide whether to enforce the existing code or allow the practice to continue.

As a result, a “waiting-area bar” ordinance had been drafted and passed, as an experimental measure due to expire Jan. 31, 2005. The ordinance restricted the area of service and required alcohol be served there only to patrons waiting for table seating and who were being served an entrée (or two or more appetizers or other food items).

When the experimental “sunsetting” ordinance came up for possible extension in January, council members opted to extend it only to April 30, 2005, allowing new council members time to research the issue before making a decision. If it was allowed to expire, Bethany Blues would be in violation of town code and required to conform, Jaywork said.

Council Member Harry Steele moved to extend the sunsetting provision for another year, with work to proceed on a formal ordinance drafted by Jaywork, while fellow Council Member Lew Killmer suggested Jaywork’s existing draft be adopted (minus any end-of-summer sunsetting provision that would end the allowance in September).

Dick Heidenberger, one of the restaurant’s owners, emphasized that they had had no intent to violate the town’s code but had instead re-examined it after initially being told they could not operate the bar area for direct service of alcohol. He said they had determined that serving alcohol — along with food — to patrons waiting and seated at the bar was an allowed use.

Heidenberger further asserted that the bar had been a blessing for the business, despite holding only 5 percent of the restaurant’s total seating. He said it had been opened in response to complaints from customers who either were waiting for table seating or preferred to eat at the bar (away from the potential noise of the “family dining” at in the table seating area).

The restaurateur said the establishment had actually lost business when they had refused to serve at the bar and had seen a 50 percent increase in business since it was fully utilized. “It would be very detrimental to my business if removed,” he said, noting the sunsetting provision had essentially been designed to apply to Bethany Blues.

Heidenberger said he understood the town and its desired atmosphere — something he said he liked and supported. “I share the same concern. I don’t want to have a bar in the town,” he said. He debated whether his establishment risked become a “bar,” noting that it does not primarily serve alcohol.

Jaywork emphasized the risk of creating a “slippery slope” where, if the town was not very careful, the next establishment could have 20 stools at a bar, and so on. Thus, his draft definition of a “waiting-area bar,” as 450 square feet maximum with a maximum of 16 patrons being served. Emphasis was placed on preventing “watering holes” by requiring meal service.

Heidenberger suggested area and patronage be capped by percentage of restaurant capacity and not a concrete number that could be abused.

While Steele clearly favored extending the practice and Jaywork had arrived at a draft ordinance to allow it, Council Member Tony McClenny took Heidenberger and his partners to task for the situation that had come into being at Bethany Blues.

McClenny said the restaurant’s management had discussed their re-interpretation of the town’s code with Building Inspector John Eckrich and were told that he did not agree with it. He asserted that they had “knowingly violated town code” and that such use did not seem to be in line with the kind of atmosphere desired by property owners according to the town’s 2004 survey.

The councilman said he had taken an oath of office and felt an obligation to support the town’s laws and code. Thus, he said, he could not support the provision, though he was sorry for the hardship it might cause the business.

Mayor Jack Walsh agreed with McClenny’s sentiments, reiterating the town’s focus on a year-round, quiet family atmosphere as a goal. He said concern had been expressed about the growth of alcohol sales in the town and its continued proliferation. He favored the approach of the 1995 ordinance and rejected fixing something that wasn’t broken. “A waiting-area bar is a bar about to happen,” Walsh concluded.

Steele disagreed, saying that he didn’t know anyone sitting on the council who wanted Bethany Beach to become a “honky-tonk town.” He said that if any other establishment opened in the town and operated like Bethany Blues, the town wouldn’t have a problem.

Steele cited early closing times, the small portion of bar space and the inequity of being able to serve alcohol at tables in the same establishment where people eating at a bar could not be served. He favored allowing the “experiment” to continue, to allow the town to determine if there really were any problems resulting from it.

Vice-Mayor Carol Olmstead sided with Steele, saying she felt everyone wanted a quiet town. “We have restaurants with small bars, and it’s not a problem. They’ve been here a long time,” she said. “We can’t go on the presumption that a restaurant with a bar will be a slippery slope and become a problem.”

Olmstead said that if any minor problems with Bethany Blues’ alcohol service had occurred in the past, the town could ask for greater effort in the future, but there was “no perceived problem at Bethany Blues or elsewhere.” She said it was “fair and reasonable” for the town to allow the provision to continue.

Killmer agreed, while allowing that the issue wasn’t one specifically relating to Bethany Blues but rather to the town-wide ordinance. He said that the existence of only a single restaurant using the provision showed there was not an issue with it being in place.

Resident Lois Lipsett also pointed to the lack of complaints about problems at Bethany Blues, “in a town known for its complainers.” She supported allowing the experiment to continue.

Dana Banks of The Parkway Restaurant also pointed to the lack of problems that had resulted, denying that fears of a “honky-tonk town” were realistic and pointing to early closing hours. She also said that enforcement was an issue simply from residents taking alcohol from their homes to the beach, and that for the town to allow the opening of restaurants and think alcohol issues would not arise would be naïve.

Resident Tracey Mulligan said the issue was simple to him: a flat surface and seats that served as a place to eat were an expansion of an existing seating area in the restaurant and should be treated the same.

McClenny said the point was the town had to consider how future establishments using the provision would be run.

Killmer voiced support for Jaywork’s draft ordinance, amended to provide for a percentage of space versus a concrete number of seats, while Degen favored the same but recommended the sunsetting provision continue, to allow the experiment to continue until Sept. 30 and verify compliance.

Steele, Omstead, Degen, Killmer and Fuller supported the motion, while Walsh and McClenny opposed it. The 5-2 margin approved the provision and will allow Bethany Blues to remain in compliance. The issue will, of course, be re-evaluated after the end of the summer.