Hearing Examiner to City: “Your position makes no sense.”

FERNDALE, Wash. — Today, Ferndale Hearing Examiner, Michael Bobbink met with lawyers and representatives for the Main Street Bar & Grill (MSBG) and the City of Ferndale to consider the business’ appeal of the City’s designation of the business as a nightclub.

Since the City made the designation, a result of a 2018 fire code inspection, the business has faced the choice of either installing a fire suppression water sprinkler system, estimated to cost between $80,000 and $100,000, or not allowing music.

Today’s public hearing allowed for both sides to present legal arguments, interview witnesses and field questions from Bobbink.

The meeting started with MSBG Owner Michael Crow being interviewed by his attorney. He explained the history of how he purchased the MSBG from former owner John Wirts and how he learned of the music restriction. He described his business plan, different than Wirts’, as providing food and beverage while being open 84 hours a week and then adding “ancillary music” for 11 of those hours to motivate diners to stick around and to encourage more diners to come in.

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Crow spoke of a Thursday steak special, Friday fish platter special and Saturday Italian dinner special. These would all benefit from live music from 6pm to 9pm on Thursdays and 6pm to 10pm on Fridays and Saturdays.

Crow estimated he had lost about 50% of Thursday night diners as a result of no music being permitted.

When asked by the City’s attorney how many people he expected would at bestwould be present during the live music, Crow responded, “110.”

City of Ferndale Administrator Jori Burnett read from a staff report that detailed their interpretation of the valid sections of the Revised Code of Washington (RCW) and The Station nightclub fire in 2003 in Rhode Island, the genesis for how those sections came to be according to Burnett.

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Bobbink said he did not understand why the City included areas outside of the dance floor as “dancing or viewing” areas as referenced by the RCW. He also took exception to the City’s interpretation of “primary use” when applying that to music performances that only would occur 3 nights a week at a business open 12 hours a day every day.

Bobbink said the MSBG appeared to him to be primarily an eating and drinking establishment and music was ancillary.

The Leader Block Wine Co. & Eatery was brought into the discussion several times as it too is a food and beverage establishment with live music. Bobbink pointed out that by the City’s definition, the locations of every customer who can see the performer should be included in the measure of the space allowed for dancing and viewing performers.

Bobbink asked Building Official Kyle Huebner, “What is the square-footage in the Leader Block can see the music?” Huebner replied that he had never reviewed the Leader Block since it was not submitted as a nightclub. Bobbink pointed out that MSBG was not submitted as a night club either.

“Your position makes no sense,” Bobbink informed the City. “I don’t believe you guys are uniformly doing the same thing to everyone.”

In a rare move, Bobbink told both sides that they could expect his opinion not to support the City’s position. Typically participants have to wait up to 2 weeks for the formal opinion to be issued to learn such news.

Bobbink advised the City to take the next 2 weeks to work with the MSBG to reduce as much danger as possible and to negotiate something. He also warned Crow that this may not be “the end of it” since the City will still have the option to appeal.