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Tuesday, June 25, 2019

City Was Wrong to Grant Up-Down STL Liquor License, Appeals Court Says

Posted By on Tue, Jun 25, 2019 at 10:13 AM

Up-Down is now open in the Central West End. - KATIE COUNTS
  • KATIE COUNTS
  • Up-Down is now open in the Central West End.
Update: Up-Down STL plans to stay be open indefinitely pending resolution of the legal matter. See update at story's end.

Original story follows:




Two weeks ago, Up-Down STL (405 North Euclid Avenue, 314-449-1742) opened its doors in the Central West End, ending two years of legal wrangling over its liquor license.

This morning, the appeals court said "not so fast."

In a unanimous ruling, a three-judge panel of the Eastern district of the Missouri Court of Appeals said the city had erred in granting the license. It has sent the matter back to the circuit court to send back to the city's Excise Division. In short, through no fault of its own, Up-Down is right back where it was two years ago.

And that's because the court wasn't ruling on the merits — it didn't say, for example, that Up-Down would be a detriment to the neighborhood, as a pair of neighbors have argued. Instead, it said the city's excise hearing commissioner failed to consider whether Up-Down would be a detriment to the neighborhood. The court is in effect sending the matter back so he can do just that.

At the time of the hearing for Up-Down's license, back in May 2017, the city's longtime excise commissioner Bob Kraiberg had been fired by the mayor's office and fighting to get his job back (a fight he later won). An outside attorney, Tom Yarbrough, had been brought in to handle the case, which had faced fierce resistance from some neighbors unhappy with the fact that a bar was replacing the longtime tenant, Herbie's Vintage 72.

At the hearing, Yarbrough said he would strictly limit his decision to whether Up-Down had gathered enough signatures from the two groups mandated by city ordinance. He decided that day that the Iowa-based arcade bar group had done so, and announced he would grant the license, along with conditions designed to mitigate neighborhood concerns.

That decision, the appeals court says, was inadequate. City ordinances, the justices agreed, contain thirteen factors that Excise "shall consider" in determining whether a license would be detrimental to a neighborhood. By focusing only on signatures, Yarbrough dropped the ball.

"[W]ithout detailed findings, and without a specific conclusion regarding detriment prior to the Commissioner's decision to grant the license application, we cannot determine whether the Hearing Officer properly followed the ordinance or review whether the decision is supported by competent and substantial evidence upon the whole record," wrote Judge Gary M. Gaertner Jr.

Now the case goes back to the city to examine that question all over again. The appeals court decision does not address whether Up-Down can stay open in the mean time; more legal wrangling on that question could follow.

Update at noon:

Calling the ruling "really a bummer," Up-Down owner Josh Ivey says he has been seeking answers this morning from City Hall, and feels fairly confident the arcade bar can continue serving drinks at least for now. "We have a liquor license," he says. "We have not had that taken away, and the court has not directed the city to take it away."

With the lower court likely to order the city to gather more information on possible "detriment" to the neighbors, Ivey says he welcomes the probe. "I'm fairly confident we can show we are not a detriment, and we are a positive to the neighborhood," he says. "We have had no police calls, and we're working our hardest to make sure we don't have any problems."

Of the legal wrangling, he admits, "I just want it to be done."

We welcome tips and feedback. Email the author at sarah.fenske@riverfronttimes.com

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