A “drinking establishment” is defined as a premises that may be open to the general public where alcoholic liquor by the drink is sold. In Marion County, at least 30 percent of such a business’s gross sales must come from food to qualify.
The council’s Nov. 6 decision followed La Cabana being approved for a state liquor license by the Kansas Department of Revenue, effective Oct. 18.
The applicant for the local license was Shane Marler, who is a partner with Atanacio Nieto in La Cabana Inc. Marler also is a member of the city council, but excused himself from that role while the issue was being considered to avoid conflict of interest.
Under state law, once a business has been granted a state liquor license, a municipality cannot refuse to grant a local license unless it believes the business to be out of compliance with local ordinances.
“We have no legal basis for denying it, so I move we approve it,” said Shelby Dirks, council president. The recommendation passed without opposition.
Chain of events
The council’s action is the latest turn in a chain of events that started in November 2004, when Marion County voters approved a liquor-by-the-drink initiative by a 53 percent to 47 percent margin.
Hillsboro voters did not go along with the majority, with 57 percent voting no. But a municipality does not have legal authority to exempt itself from a countywide measure. Its only avenue for restricting liquor sales is through local licensing requirements and fees.
In December 2005, the city council adopted Ordinance No. 1119, which regulates the sale of alcoholic beverages within the city. The ordinance does not address permissible locations for drinking establishments, thereby opening all zoning districts within the city.
The issue resurfaced earlier this year when La Cabana expanded into an adjoining building with the intent of offering alcoholic drinks.
Because the issue is tied to zoning districts, it was assigned to the Hillsboro Planning Commission to come up with a recommendation for the council to consider.
The commission convened a public hearing Sept. 27. Seven citizens spoke up, none of which spoke in favor of allowing a drinking establishment in the downtown business district.
Needing to designate a permissible location, the Planning Commission formally recommended to the council that such businesses be restricted to property zoned “Highway Commercial,” which at the time included only Hillsboro Heights.
The council considered the commission’s recommendation at its Oct. 16 meeting, but members expressed an intent to include the downtown “Central Business District Overlay” as well as the “Limited Commercial” zone along D Street.
A recommendation to that effect was tabled when Councilor Byron McCarty said he needed more information before casting his vote.
Now, with its local license approved at the Nov. 6 meeting, La Cabana would be “grandfathered in” even if the council were to eventually adopt the Planning Commission’s more restrictive recommendation.
Marler said late last week he believes the Planning Commission’s recommendation to exclude La Cabana from its zoning recommendation was not conspiratorial.
“I think it came down to certain people in certain positions having moral issues with allowing liquor by the drink, especially on Main Street,” he said.
“I think they did what they thought was right—and I hope everyone did what they thought was right so no one will be too upset about (the outcome).”
At the same time, Marler said to his knowledge tabling the issue at the Oct. 6 meeting was not a deliberate ploy by council members to buy time in order to let La Cabana in through the back door.
“I had absolutely no idea it was going to be tabled,” Marler said. “It was a very important thing for me, personally and ethically, to not be involved in anyone’s decision-making process.
“Basically, I just wanted to take advantage of the rules that were already set up. If it didn’t work out, it didn’t work out. I wasn’t going to hold anybody personally responsible for it.
“I understand those people that didn’t want to see this happen. At the same time, I know there are people that do want to see it happen. I basically was representing those people.”
Marler said the restaurant won’t be making alcoholic drinks available to its customers for a while yet.
“We hadn’t really purchased any equipment yet because we wanted to make sure we would get local authorization,” he said. “Now that we have local authorization, we basically go shopping. It kind of depends how long it takes to ship in the equipment we need.”
Marler said he and Nieto were motivated to pursue a liquor license by the prospect of enhancing their business and the local economy generally.
“I would like to see it draw in a lot of out-of-town business because there aren’t many places in the county you can have a nice meal and a drink to go with it,” he said.
“A lot of people I know go to Newton, and we would really like to see them shop locally instead of going out of town.”