The verdicts handed down this week in the court case connected to a dispute between the owners of 3 bars carved out of the former Settegast Kopf funeral home on Kirby Dr. at Colquitt, their landlord, and residents of the subdivision that surrounds it are a tad complicated. As a result of the jury decisions, neighborhood homeowners are now asking the judge to force 2 of the bars — Roak and Hendricks Pub — to stop selling alcohol. One of the jurors in the case offers Swamplot readers a detailed explanation of the decision:
It’s important to understand a couple of things. First, the David Crockett Addition includes 2 commercial blocks facing on Kirby. When John Sharp incorporated this addition in 1949 he laid out restrictions that cover both the residential and the commercial lots – no distinction between the two. The four restrictions in question here are 1) a prohibition against the sale of alcoholic beverages on any lot; 2) a prohibition against operating a trade or activity that a reasonable person would consider noxious or offensive on any lot; 3) a prohibition against any activity on any lot that creates a nuisance or annoyance to other lot owners; and 4) a requirement that lot owners submit plans and specifications for any new construction or changes to existing structures to an architectural control committee for approval.
The property owners have been scrupulous about enforcing these and all other restrictions in the residential section of the addition. However, their enforcement of the requirement for plans and specs on commercial lots has been spotty at best, and they have never attempted to enforce the alcohol sales prohibition restriction. Every lot in Block 1, the block in contention here, has at one time or another, held some sort of TABC license, and at the time the project got underway 2 had (and continue to have today) active licenses — Cafe Express and The Owl. Their justification for inaction is that these places sell a relatively small amount of alcohol and have never caused a problem in the residential portion of the addition.
In May 2011 a group of homeowners filed suit against Thor Equities (the property owner); GWV Kirby LLC (the operator of Roak and Hendricks Pub); GWV Patio LLC (the operator of OTC) and against 4 individuals, the original principals for GWV Kirby LLC and GWV Patio LLC. The suit was filed before any of the establishments opened for business. The four individuals countersued for race discrimination, alleging they were being treated differently because of their ethnic backgrounds (Middle Eastern/Asian).
Over the course of the trial a few things became clear — the clubs, and especially Roak, had created a nuisance and annoyance based on the volume of patrons and cars flooding the neighborhood. The jury also felt there was really no evidence of racial discrimination against the four individuals. The questions around noxious/offensive trade and abandonment of the deed restrictions were much more difficult to decide. In the end we decided that the homeowners had not abandoned the restrictions, but that the restriction against alcohol sales was unenforceable due to the changed conditions in the area — remember, this is right in Upper Kirby. We finally agreed that Roak could be considered to be conducting noxious trade or activity (based on its high volume of alcohol sales), but not OTC. We were not able to separate Hendricks from Roak as they are owned by the same LLC.
Our intent was not to shut down any or all of these clubs, and we hope our decisions will push the parties to the bargaining table to find a way to allow the businesses to continue to operate, but in a manner that is not offensive or a nuisance to the residential area. We also hope that the property owners in both commercial blocks will be welcomed into the homeowners association and will take an active part in that organization going forward.
So, what comes next?
The judge will make some decisions about [attorneys] fees. Several [jurors] spoke with [one of the plaintiffs’ attorneys] after the trial and he indicated there would be an attempt to work out some mutually acceptable compromise. If they are unable to do so I think the verdicts give the homeowners the ammunition they need to try to close the place. If they are successful Thor will probably have a tough battle trying to get another bar or club in there.
- After jury verdict, fate of three Kirby Drive bars is in the hands of the judge [Houston Chronicle]
- Previously on Swamplot: Funeral Bars Get Their Day in Court, Openings and Closings: New Hubcap Grill, Funeral Bars, Downtown Phoenicia Delay, Heavy Drinking in the Old Funeral Home: Kirbyâ€™s Settegast Kopf Going Multi-Bar
Photo of Roak, 3320 Kirby Dr.: Candace Garcia