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Weekly UpdatesLola's opponents turned out in full force and complained that the community was already oversaturated with 35 drinking establishments within 500 feet of the proposed premises (Sweeney argued that most of the licenses were issued before the law went into effect in 1993), and that traffic would worsen. Patrick-Odeen disputed the accusations and presented more than 535 signatures of support from the community.
"We don't oppose liquor licenses generally," Sweeney argued at the hearing. "This block just can't take another one."
City Councilman Alan J. Gerson, who wrote a letter to the State Liquor Authority in opposition to the license agreed. 'Any applicant for a liquor license at that location would have received opposition? He also echoed the community board's concern over the outdoor courtyard and intended sidewalk cafe, two things he said his office usually scrutinizes when they are proposed in residential areas.
"We offered to work with the restaurant and community, as we do in many cases, to see if we could bridge the gap and come up with plans and constraints to allow the business to go forward," Gerson offers. "In fact, we had a meeting with Lola and gave them some suggestions. I think they took some of those suggestions [such as double-paned glass windows.]"
The 500-foot hearing went in Lola's favor and the SLA issued the license in March 2005. A group led by the Alliance filed suit against Lola and the State Liquor Authority in New York State Supreme Court, presenting 509 names of petitioners. Judge Marilyn Sharer annulled the license in November 2005, citing the 500-foot rule, and wrote that the State Liquor Authority "acted in an arbitrary and capricious manner granting an on-premises liquor license without detailing its reasons why and how it would be in the public interest to do so."
Patrick-Odeen filed an appeal in the Appellate Division and hired a private investigator, who found that many of the 509 petitioners had not consented to supplying their name in opposition. The Alliance conceded that some of the names had been falsely included.
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The Appellate Division overturned the ruling by the State Supreme Court on Aug. 31, 2006 and ordered the license reinstated. Only the license was reissued stating Lola would "be a bona fide restaurant with no live music or dancing even though live music and dancing had been discussed from the start." Lola's original application stated there would only be background music, an error Patrick-Odeen believes was made by her attorney's office. Minutes from the community board's business committee and full board meetings both show live music was discussed.
OPEN BUSINESS
When Lola finally opened in fall 2007 with a liquor license that only allowed background music, it struggled to attract the number of customers it had in Chelsea. Patrick-Odeen estimates that 60% of her clients patronized her business because of the live music.
The number of patrons dropped from 200 at its old location to 35, making it difficult to pay the monthly rent of $21,000, in addition to $10,000 in arrears due for three years. Tom estimates that the restaurant had gone from grossing between $300,000 and $400,000 a month at the Chelsea location, depending on the time of year, to less than half that. "We're just breaking even now but we have so much that we owe that we're still paying money backward," says Patrick-Odeen. "That's why we're in this hole."
The two investors secured in 2004 had left following the legal battle. Another investor left when there were problems getting live music. Patrick-Odeen estimates the couple liquidated at least $800,000.
Lola isn't the only restaurant to go up against the SoHo Alliance, which vehemently fought Besito, an upscale, 69-seat gourmet Latin fusion restaurant that opened in October 2004 with a beer and wine license. Five months later Besito sought to upgrade to a full liquor license in order to remain competitive. Community Board 2 opposed it at two meetings, citing an oversaturation of bars, noise, and traffic. "The Evans didn't want it there," offers Sweeney. "[People] said we were anti-Hispanic."
The board relented and voted in favor of the license, which was eventually granted. But by then, the business had taken such a financial hit that it wasn't able to remain open. A Japanese fusion restaurant called K, now occupies that space. And there was no opposition to its license. "It's very Zenj," Sweeney says in support. "It would look silly to oppose the application."
Nor did anyone oppose the liquor license application for nearby Aurora, a restaurant Sweeney says he ate at when it was located in Brooklyn's Williamsburg neighborhood. He characterized it as a family restaurant. None of those establishments offer live music, but there are others near Lola that do. Sweeney argues that the Alliance evaluates each situation on a case-by-case basis. "It has nothing to do with Lola. She's taking it so personally."
But Binaolo charges, "Picking and choosing is profiling," and he believes Patrick-Odeen has every right to take the issue personally. "What I don't buy into is they have virtually bankrupted Gayle and her husband over the issue. And you know what? Some acceptable demographic of theirs will show up and get a license and have a band that plays until four in the morning," he continues. "What they really mean is 'We don't like this woman but we can't say that, so we'll say this. But if someone else comes along that we like and wants to rent that space after she's gone then they'll get what she couldn't.'"
WEIGHING THE PROS AND CONS
The State Liquor Authority's two commissioners finally awarded Lola its license with music on July 17, 2008, after crucial paperwork, including a letter submitted in 2004 regarding Lola amending its original application to include live music, surfaced. The documents showed that live music had indeed been discussed at Community Board 2's business committee and full board meetings.
A lobbyist for Patrick-Odeen forced the Authority to review the paperwork She also credits her attorney, Terry Flynn Jr., who handled the liquor license, without pay. The attorney representing her in the 500-foot rule lawsuit dropped the case for lack of payment. The New York State Supreme Court case is still open but remains at status quo because nothing can happen with it until the Lola bankruptcy case is settled in federal court according to SoHo Alliance attorney Barry Mallin.
Patrick-Odeen agreed to a liquor license that came with several stipulations that restrict live music to 10 p.m. on weeknights and midnight Thursday to Saturday. Also, the inner doors of the premises must remain closed while live music is being played and the restaurant not try to expand to the outside courtyard area, which Patrick-Odeen estimates would bring between $1 million and $1.5 million of revenue annually.
Mallin says he is pleased with the outcome. "She can continue in business but we felt she was put on a tight leash." Sweeney called it a "Pyrrhic victory" for both parties but believes the lengthy fight could have been avoided. "If Tom and Gayle had just come to us like everyone else does and said, 'This is what we want to do and how can we work this out,' it would have saved them close to a million dollars and a lot of aggravation."
Patrick-Odeen says if she wanted to, she could serve food and lemonade in the courtyard, which is under the Evans' window, but that isn't in her plans As for the limited hours of operation with music, she isn't thrilled about that. "We are not a club. We don't need to be open until 4 o'clock in the morning, but we would certainly like the flexibility if we need to," she says.
She refused to sign a settlement agreement that would table the outdoor space issue and prevent her from taking legal action against the SoHo Alliance. I have suffered so much in four years. Why should I be forced to give up revenue and sign something that relieves you of the responsibility that you owe me for taking me through what you did?"
She hasn't decided whether to pursue legal action.
A DIFFERENT STRATEGY?
Patrick-Odeen could have proceeded differently from the onset, Robert Ferrari, a Manhattan attorney who specializes in helping clients obtain liquor licenses and who followed the case as an impartial outsider, suggests getting community board approval before a lease is signed. He sometimes recommends hiring an outside consultant, such as a lobbyist, to steer a community board. Occasionally he may meet with an aide to a local council member or various board members in hopes of persuading them that the business will be good for the area.
"Lola ultimately won and I'm happy that she did:' Ferrari remarks. "It was a senseless fight because what Lola wanted to do was not violate the civility of the neighborhood. She wanted to continue doing what she was doing in Chelsea."
Patrick-Odeen now realizes her mistakes. "Hiring a lobbyist at the very onset would have been an important thing to do and would have given us perspective that we didn't have initially," she says.
"Understanding the politics in any neighborhood that you're going into is of critical importance to any business owner because at the end of the day it was the politicians that they had at their disposal that fought their fight. But once this ball started rolling and we were caught up in the court system, there was very little most people could do to help us. You have to let it play out."
Four weeks after Lola started live music, Sweeney says there have been no complaints to him. "Much to everybody's surprise, there's no loud horrible music coming from here," Patrick-Odeen says sarcastically. "There's no riffraff in the street and people can sleep at night. It's amazing."
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