The Ritz accessory casino Public Comment from Michael LawlorLOR
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ATTORNEYS
DELIVERED VIA EMAIL
Mayor Mark Johnson
Kalispell City Council
P.O. Box 1997
Kalispell, Montana 59903
citycouncil@kalispell.com
publiccomment@kalispell.com
MICHAEL MAHAN LAWLOR, J.D., LL.M.
JESSICA BURBANK, Paralegal
June 20, 2021
RE: KCU-21-03 — Ritz Bar & Salon accessory casino Conditional Use Permit
Dear Mayor Johnson and Councilors:
I have represented Tristelle Vu, and her husband, Tung Nguyen, for several years in
various business matters in western Montana, and I am pleased to represent them now in
their work to start up The Ritz Bar & Salon, an exciting new business on Main Street, in
Kalispell. I know Trish and Troy to be conscientious and successful business owners,
and their investment in downtown Kalispell will be a huge benefit to the City for many
years to come.
Following the model of successful high -end nail salons in other parts of the country, The
Ritz will offer clientele the ability to have a glass of wine or a cocktail while getting a
pedicure or manicure. A vitally important part of their business' future financial
success which is consistent with zoning requirements, and with Main Street's historic
character will be the accessory casino space within the bar and nail salon.
For better or for worse, liquor licenses in most Montana cities including Kalispell are
prohibitively expensive. Trish and Troy are investing $775,000, justfor the liquor
license, as they start this business, along with many hundreds of thousands of dollars
more for the real estate and other business start-up needs. With a license representing
such an enormous expense, it is vital that they have access to as many revenue sources as
possible, in order to pay for it.
MICHAELaMTBEVLAW.COM P.O. BOX72H JESSICA(c%MTBEVLAW.COM
(406) 625-7020 (PHONE) MlssouLa, MoNTaNa (406) 625-7021 (PHONE)
(406) 625-7024 (FAX) 59806-0728 (406) 625-7024 (FAX)
Mayor Johnson and City Council
RE: The Ritz — accessory casino CUP
.Tune 20, 2021
Page 2
Some citizens have expressed concerns that an accessory casino would negatively impact
the character of the Downtown area; fortunately I believe most of their concerns are due
to misunderstanding about the nature of Trish and Troy's business. The Ritz will
not be a rowdy, disruptive bar and casino in the middle of downtown. Rather, it will
cater to clientele, both local and tourists, seeking a high -end nail salon experience. The
Ritz will be an added amenity, available to nearby hotel guests and others visiting
Downtown. As another benefit, when nearby local restaurants have long wait times,
people will be able to remain Downtown and have a cocktail at the bar or use the gaming
machines for a few minutes while they wait, rather than giving up and driving elsewhere
or dinner.
Although Montana law allows for bars to stay open until 2:00AM, and for casinos to
remain open 24 hours/day, The Ritz will not do so. Trish and Troy plan to keep the nail
salon open until 9:00PM, while the bar and casino would remain open until I I:OOPM
long enough to support the local nightlife, but closing early enough to avoid people being
out too late.
Perhaps most importantly for allaying the concerns some have about the presence of a
casino at The Ritz: members of the public will not be able to tell there is a casino
inside the business unless they go inside. This is the specific purpose of the "accessory
casino" definition in Kalispell's zoning ordinance. It will be an amenity for the area, and
a vital source of additional revenue for the business, but will not have any adverse effect
on the "family -friendly" atmosphere of the Downtown area. There will be no "Casino"
signage, no visible gaming machines, no neon lights — nothing about The Ritz will be
anything like the stereotypical, garish "Casino and Liquor Store" that people don't want
to see Downtown. Again, this is the exact purpose of the "accessory use" casino zoning
provisions applicable to Zone B-4: to allow small accessory casinos, without negatively
affecting the character of the area.
The specific review criteria for Conditional Use Permits are set forth in Section
27.33.080(2) of the zoning ordinances, and are each addressed in the Application,
including the April 28, 2021, letter from the architect, Dia Sullivan. The Staff Report,
dated June 2, 2021, considers each requirement, and finds they are satisfied. As stated in
Sec. 27.33.080(1), "An authorized conditional use may not be denied arbitrarily or if no
specific adverse effect is found." For an application to be denied, the question isn't
simply whether a hypothetical adverse effect may exist, but whether the proposed use
would be "more adverse" than "any use generally permitted in the district." There are
dozens of "generally permitted" uses in Zone B-4, and they include bus stations,
community centers, jails, commercial schools, athletic clubs, parking structures,
Mayor Johnson and City Council
RE: The Ritz — accessory casino CUP
.Tune 20, 2021
Page 3
crematoriums, food banks, tattoo parlors, and veterinary clinics — among many others. In
order to deny Trish and Troy' s application, the Council would need to specifically find
that a proposed accessory casino, which will be completely hidden from public view,
would somehow be more adverse to the health, safety, comfort, or economic well-being
of people in the area than any of these other generally permitted uses would be. That is
the legal standard that applies to the Council' s determination.
The Planning Board and Zoning Commission correctly determined that The Ritz meets
the legal criteria for an accessory casino. There were two members who voted against the
favorable decision, for reasons that I want to address: (i) Mr. Vomfell did not believe
another casino was needed in Kalispell; and (ii) Mr. Giavasis was concerned that the 20%
square footage limitation might be exceeded, depending on whether the "primary use"
was the bar or the nail salon, and especially during times when the nail salon portion of
the business was closed for the evening.
Regarding Mr. Vomfell's concern about whether another casino is "needed" in Kalispell,
as explained above, that is not the legal criteria that applies to the Planning Board's
determination, nor to the City Council' s determination. That would be an arbitrary
determination, specifically prohibited by the last sentence of 27.33.080(1).
Mr. Giavasis' concern about how the 20% square footage limitation applies can be
addressed in two ways: by reference to the zoning ordinance itself, and by looking at how
Montana alcoholic beverage licensing law categorizes the premises. First, the wording of
27.34.040(3) answers Mr. Giavasis' question about what parts of the business count as
the primary use, for purposes of the 20% calculation. The requirement is, "...the primary
use [... ] and its associated facilities constitute at least 80% of the proposed floor space
and the casino constitutes no more than 20% of the proposed use." (Emphasis added.) In
other words, we don't look only to the bar, but to the bar and its associated facilities - in
this case, the nail salon. Further buttressing this interpretation is the fact that the
Montana Alcoholic Beverage Control Division ("ABCD"), which issues alcoholic
beverage licenses and enforces compliance with related laws, defines the entire area on
the floor plan including the bar, nail salon, and casino as the licensed premises at
which the bar will be operating. See ARM 42.12.106(18) and (32). As stated in the Staff
Report, the accessory casino area will be approximately 12% of the floor space, which is
well within the 20% limit.
We know The Ritz will be a great asset to the Downtown area. All the more so with the
architectural improvements Trish and Troy will make to restore the historic facade, and
by keeping the former Kalispell B ar' s quota -limited liquor license downtown on Main
Street, rather than moving it to a new commercial development outside of town.
Mayor Johnson and City Council
RE.• The Ritz —accessory casino CUP
June 20, 2021
Page 4
We appreciate the Council' s time, and look forward to appearing at tomorrow evening's
meeting. If any Councilors have any questions about Trish and Troy's application, please
let me know, and we would be happy to address them. I look forward to speaking with
you at the Council meeting, to share how this new business will benefit the Downtown
Kalispell area.
Very truly yours,
LAWLOR & CO., PLLC
r
Michael M. Lawlor