Published: October 06, 2008 10:30 pm      

Ultimate Place wins court battle

Three-year fight may have reached final conclusion

Kokomo bar owner Dan Dumoulin II was vindicated by the Indiana Court of Appeals Monday after a three-year battle to keep a southside strip club open and serving liquor.

Three appeals judges have unanimously ruled in Dumoulin’s favor, in a decision which could mark the end of a local remonstratrance against Dumoulin’s Ultimate Place 2B night club.

The decision, filed Sept. 30, concurs with an earlier trial court decision in the case issued by Miami County Special Judge Rosemary Higgins Burke.

In upholding Burke’s December 2007 ruling, the appeals court said Dumoulin’s liquor license renewal request was rejected in an “arbitrary and capricious manner.”

The latest ruling in the case contends the Indiana Alcohol & Tobacco Commission had insufficient evidence to, in effect, revoke Dumoulin’s liquor license at the Ultimate Place 2B, 5126 Clinton Drive.

The court of appeals ruling was a blow to local remonstrators, led by two pastors at Crossroads Community Church.

The pastors, Kevin Smith and Jeff Harlow, reluctantly gave up a previous remonstrance against the Dumoulin family after receiving certain assurances in 2001.

While Smith, Harlow and the other remonstrators may have considered those assurances — offered in writing by Dan Dumoulin II’s parents — binding, the court of appeals disagreed.

Instead, the judges last week ruled Dumoulin II was never a party to any agreement his parents made with the remonstrators.

The 2001 agreement, the judges said, was that Hoosier LLC, the corporation owned by Joan and Dan Dumoulin Sr., would not turn what opened as a sports bar into a strip club.

Arguments still rage as to whether Joan and Dan Sr. honored the second part of the agreement. In 2001, they promised that remonstrators would be notified if Hoosier LLC ever sought to transfer the liquor license.

Dan Dumoulin II’s parents transferred the license to their son in mid-2005, and the appeals court judges ruled the Dumoulins did, in fact, give sufficient notice.

The ruling notes that Kokomo attorney Mark McCann, who in 2001 had represented the remonstrators, acknowledged receiving oral notice of the pending liquor license transfer from fellow Kokomo attorney Dick Russell, prior to the transfer request being heard by the Howard County Alcoholic Beverage Board.

The remonstrators insisted the agreement was that the notification would be in writing. The appeals court was, however, satisfied that proper notice had been served, “albeit oral rather than written.”

The appeals court, like Burke, also rejected claims Joan and Dan Sr. never made a “bona fide” sale of the club to their son. An ATC hearing judge had originally ruled no paperwork existed to support the Dumoulins’ claims the club was actually sold.

That point was important to the remonstrators, who tried to claim the Dumoulins — Joan, Dan Sr. and Dan II — had always intended to operate the Ultimate as a strip club, but had been temporarily thwarted by the 2001 remonstrance.