Changing the Rules

Marvin Atwood

The stretch of 11th Street in Beaumont between Interstate 10 and Highway 69 is a busy thoroughfare with a diverse mix of motels, grocery stores and retail businesses on a road where the sounds of passing cars and trucks are a constant reminder of city life. It is also the site of an embattled restaurant currently locked in a dispute with the Beaumont city government over a controversial noise ordinance, although if you want to discuss it while standing near 11th Street, you’ll have to talk loud to be heard over the commercial cacophony.

Starvin Marvin’s Bar and Grill opened May 21, 2010, at 2310 N. 11th St. in a building that had previously housed Christopher’s, Hoffbrau Steaks and Rocky’s Roadhouse. Each venue had enjoyed some success in that location before changing business trends and hurricane damage rewrote the equation.

Marvin Atwood had found success in the construction industry and raising racehorses in Louisiana, but had always wanted to open a restaurant.

“I used to put on two parties a year, pretty good sized parties for my wife’s birthday and the fourth of July with three or four hundred people – I’d cook for that,” he recalled. Despite his lack of experience in the foodservice industry, guests’ rave reviews told him he was on the right track, so he took his recipes, business know-how and a sizeable chunk of change and opened an eatery he called Starvin Marvin’s.

Atwood invested $1.2 million initially to renovate the structure and attached patio seating area where he built a stage to present live entertainment.

“I’d always wanted to have a place like you’d see in Austin in the 1970s – a relaxed atmosphere with good food and live music,” he told The Examiner. “You can call it a bar, but it’s so much more than that. It’s a restaurant, really, family-friendly with a kid’s menu – something you won’t find in many bars.”

Marvin Gardens

Starvin Marvin’s was an instant success from the day it opened, with the food as the star attraction. Their steaks are hand-cut Black Angus beef aged in-house for 28 days and grilled to perfection, and compete for menu space with prime rib, pork chops, grilled pork tenderloin, barbecued chicken, quail and a variety of fresh seafood – catfish, salmon and tilapia to complement shrimp, oysters, and crawfish etouffee. Burger variations start with a half-pound of fresh Angus beef served on a jalapeno sourdough bun, or you can opt for a turkey, veggie or venison patty. Pasta dishes and chicken-fried steak are also offered.

Marvin’s Famous Blackberry Baby Back Ribs are a big seller, and for good reason. Marinated for three days, slow-smoked for sixteen hours and slathered with a homemade blackberry barbecue sauce, these ribs are a revelation for even the most sophisticated barbecue epicureans.

So the kitchen was performing at a high level, the renovated dining room and patio area was both casual and comfortable, and patrons enjoyed the eclectic blend of entertainment presented on the patio stage – country one night, blues the next, with jazz, pop, rock and bluegrass thrown in for good measure.

A few neighbors apparently were not enjoying the success of Starvin Marvin’s and began to complain to the city about the noise. One member of City Council reportedly even borrowed a sound meter from the Fire Department and took readings from the driveway of Martha Smith, whose house sits on an adjacent lot close to Marvin’s patio area. In late July 2010, the Beaumont Police Department brought its own sound meter and issued a ticket to Atwood for violating the noise ordinance.

Atwood didn’t panic; he didn’t even hire a lawyer. As an experienced businessman, he had done his homework before investing $1.2 million of his own money in the project. Under the city zoning ordinance, Starvin Marvin’s is designated for general commercial – multi-family (GC-MD) use, and sound levels must be measured from the nearest residential zone boundary. The police – and the council member before them – had instead taken the measurements from the property line of the offended homeowner.

Atwood went to City Hall in August 2010 accompanied only by his secretary. At a meeting with Mayor Becky Ames, city manager Kyle Hayes, Community Development director Chris Boone and city attorney Tyrone Cooper and others, Atwood distributed copies of the ordinance with the relevant portion highlighted in yellow, which showed the police had acted in error. Cooper issued orders at that meeting for the ticket to be dismissed, but Atwood’s troubles were just beginning.

Even though he had complied with all rules and regulations in exhaustive detail all through the building and permitting process, Atwood had apparently offended the sensibilities of some in local government. The city had approved his plans at every step of the way and Starvin Marvin’s had passed every inspection. It was clear they knew his intent – he had even rented a portable stage from the city for many of his early outdoor shows at the location.

In a tough economy, Starvin Marvin’s had 110 to 150 people on the payroll at any given moment and paid more than $10,000 a week in sales tax. But for some reason, forces within city government ignored all that and declared war on the restaurant.

Violated

It took the city legal department some time to get its ducks in a row but by March 8, 2011, they were quacking in unison. Atwood got a text message that a public hearing on the noise ordinance was underway. He had received no notice of this but somebody had lined up the offended property owners, who were all there – Mrs. Smith and a few residents.

Although it was billed as a “work session” on the agenda, by the time it ended that afternoon the council voted in a new noise ordinance that seemingly targeted Starvin Marvin’s. Attorney Cade Bernsen, retained by Atwood, showed up and asked for a delay so they could present their side of the issue – to no avail. This train was running downhill and could not be stopped.

The new ordinance was a particularly punitive piece of legislation that ignored the well-established protocol for changing zoning rules. It not only lowered the existing measurement for sound levels considered in violation but said even if the sound did not exceed that level, the business could still be ticketed if it “unreasonably disturbs … the comfort, repose, health, peace and safety of others…”

In addition, those sound measurements would now be taken not from the boundary of the nearest residential zone but from the property of the offended resident. By now, 91-year-old Martha Smith had moved away but if anyone renting her house claimed the slightest discomfort, Atwood would be subjected to a $2,000 fine and up to one-year imprisonment in the state jail for each offense.

How unreasonable is this new standard? An industrial hygienist retained by Atwood found that ambient sound from that patio exceeded allowable noise levels even when no music was played.

Even though this new ordinance and the rigged process that created it raised more than a few questions, not one City Council member voted against it. No city officials contacted for this story would discuss the Starvin Marvin’s case, citing pending litigation, but one member privately commented, “You can’t vote against a noise ordinance.”

Fighting back

Explanations abound for how this whole mess started and somehow spun quickly out of control. Atwood was described as “arrogant” at the August 2010 meeting that ended with Cooper ordering the ticket dismissed. While some may have preferred a more deferential manner from the entrepreneur, he was in fact correct as a matter of law.

So the city decided to change the law. Cooper reportedly assigned his minions in the legal department to draft the restrictive new ordinance. There was also a suggestion floating around city hall that Lumberton resident Atwood was somehow a racist.

A visit to Starvin Marvin’s quickly disproves that notion. An extremely diverse mix of every age, race, ethnicity and income level is apparent on any given night, with senior citizens dining amidst families with younger children who go dance near the stage after finishing their chicken tenders. The vibe is mellow, almost laid back, even as waitstaff hustle trays of food to the tables.

It seems incomprehensible that city officials decided there is no place in Beaumont for a business that will pump more than $5 million into the local economy this year.

The case is now in the courts after Judge Donald Floyd enjoined the city from enforcing the restrictive new law. An appeals court overturned that ruling on a 2-1 decision on technical grounds having to do with vested property rights or lack thereof in this case. That decision was appealed to the Texas Supreme Court which late last month denied Atwood a hearing without comment. His attorneys have filed a motion for rehearing at the Supreme Court, a prospect with such unlikely prospects even Bernsen described it as a “Hail Mary.”

So where does that leave Atwood, whose legal costs are already in excess of $100,000?

Starvin Marvin could still challenge the law in court if the restaurant is issued a new ticket, as appears lkely. He could conceivably win outright or on appeal and have the new law thrown out but could be subjected to additional tickets, more $2,000 fines and possible jail time while that lengthy process plays itself out.

The city carved a Crockett Street exception in the new ordinance that exempted the central business district. Some observers have said creating a similar exception for Starvin Marvin’s could be a just resolution that would allow this economic engine to continue to the benefit of all Beaumont citizens.

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Changing the Rules | The Examiner

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