The owners of Rain Restaurant and Lounge feel like the City of Fairfax is unfairly discriminating against their business, and they are determined to find out why.
The establishment has changed its name so the public primarily identifies it as a restaurant. But when the City Council denied a dancing and entertainment special use permit for Rain, Tuesday, June 12, it cited the establishment’s primary operation as a nightclub as a main reason for the denial. Council also felt the three zoning citations issued to the business showed its refusal to cooperate with the City Code.
Since the permit denial, Rain’s owners have tried to reassess where they went wrong, in order to reapply for, and obtain, the special use permit. What they’ve learned is that nothing they do will please the city, said Rodolfo "Fito" Garcia, Rain’s general manager and one of its owners.
From stipulations about capacity, to details about the amount of food being served and the dress code, city officials have been coming down hard on the business. Last week, at least three city officials visited Rain and conducted separate, and short, walk-through inspections. Michelle Coleman, the city’s zoning director, said based on what city staff saw, Rain should expect another notice of violation.
"They weren’t operating as a restaurant, by definition [in the City Code]," said Coleman.
The City Code states that a restaurant is a "principal use where food or beverages are prepared, served and consumed primarily on the premises … and in such an establishment, food or beverages are served to customers at the table or counter where the meal is to be consumed; on non-disposable plates."
The issue rests with whether a restaurant is Rain’s principal use, said Coleman, which the city believes it is not.
Garcia did not think the city’s alleged findings of violations were credible. He said the city doesn’t like the business, for whatever reason, and is discriminating against it as a result.
"They’re changing the Code as they go," said Garcia. "They want to see food on the tables all the time."
Garcia said Rain’s owners couldn’t dictate how much food its patrons order. Food is available, but whether the patrons order it is up to them. He also noted that inspectors walked through the establishment late in the night, during times when patrons generally were not consuming food.
Regardless of that excuse, Coleman said the establishment is not following City Code when its primary use seems to be either a nightclub, bar or lounge. Without the dancing and entertainment permit, a restaurant should be their primary use during all hours of operation.
"What they are is a restaurant; that’s what they’re permitted to be," said Monty Lowe, a city zoning official.
Garcia and John Croce, another owner, said they were given the impression they could have dancing and entertainment at private parties, even though the special use permit was denied for public use. During a private party at Rain, Tuesday, July 3, Garcia said City Manager Bob Sisson walked through and told him Rain couldn’t operate with dancing and entertainment, regardless of whether it was hosting a private party or open to the public.
"What I observed is that they still had both [dancing and entertainment]," said Sisson. "It’s my understanding they have been told that [a private function] doesn’t make any difference [in the allowance of dancing and entertainment]."
Garcia points to establishments like Auld Shebeen and Bridges — both city businesses that provide late night entertainment — as proof the city is unfairly picking on Rain. Auld Shebeen, located on the same city block as Rain, has a dancing and entertainment permit, and Garcia wants to know why he can’t get one too.
"[Auld Shebeen] came to us and said, ‘We’re a restaurant, but at certain hours, we want to be something else," said Coleman. "At Rain, they want to front like a restaurant, but they want to be something else … [City staff] is on to this."
AS FOR BRIDGES, Garcia said it’s operating without a dancing and entertainment permit, but isn’t getting harassed like his business. He asked Coleman to walk to other establishments in the neighborhood when she came in to inspect, because he said he wanted her to take note of the way others are operating. He said he doesn’t want to "rat anybody out," but he wants the city to be fair.
"We want a level playing field," said Croce. "In this type of business, any rumor affects your sales. We feel alienated; like victims."
Coleman said the zoning department is a complaint-based jurisdiction, meaning it only inspects businesses after receiving a complaint about a possible zoning violation.
"We’re not in the business of discriminating against one restaurant or another," said Sisson. "We want every restaurant in the city to be successful, but we have a set of ordinances, while complicated and difficult to interpret sometimes, we try to make sure everyone abides by them."
The city doesn’t have the manpower to check everyone out, Coleman said. Rain might seem like the target right now, but it’s only because of complaints and the direction by City staff and Mayor Robert Lederer.
"Bridges is in a residential neighborhood, and we’ve never received a complaint," said Coleman.
The zoning department’s priority of response, said Coleman, begins with public health and safety issues, followed by city staff or the mayor’s direction, and finally complaints made by the public.
Recently, Bridges violations came to light when new owners took over, she said. The establishment has now received a notice of violation, two tickets and its dancing and entertainment permit application is being processed, according to Coleman. The city hasn’t repeatedly cited the owners because they appear to be "trying to do the right thing," by applying for the permit.
The only reason Rain wasn’t given the same treatment, she said, is because its non-residential use permit specifically stated it could not operate with dancing and entertainment.
"The dancing and entertainment application was being processed, but they opened anyway, as a nightclub," she said.
After the city denied the permit, Tuesday, June 12, Coleman said she advised Rain’s owners to follow the rules for a while to establish themselves as law-abiding business-owners. That way, after a few months of following every aspect of the Code, she said the city would likely grant them the permit.
Croce wants to know why Coleman initially told them she thought a permit would be granted, but then went back on her word and told them it didn’t look likely.
"When you go back and don’t operate as a restaurant [after the dancing permit’s denial], and go back and start using creative things to keep operating [with dancing and entertainment], it doesn’t look good," she said. "That’s why I’m not optimistic."
The creative things Coleman refers to, such as private parties and a recent "teen night," are not ways to avoid the City Code. Croce said Rain wasn’t trying to violate any laws, but it was trying to keep business booming by attracting people legally. Rumors have hurt business, he said, and the owners are just trying to reap their $2.7 million investment. "It looks like they’re going to try to eliminate us by starving us," said Croce. "We have to make adjustments as businessmen. There’s always going to be gray areas [and loopholes]; that’s what smart business people do."
Coleman recognizes the business’ "good intentions by trying to stay afloat," but said it must first follow all of the city’s ordinances. Sisson said the city is seeking advice from its attorney on how to proceed with the matter.
"The city is considering what steps to take and will probably be seeking additional discussions with the owners, because we want them to understand how to comply," he said.
Rain’s owners said they aren’t sure whether to pull their reapplication, appeal the original denial, or take legal action against the city.