The bar has been trying to open in the former Canon & Draw Brewing Co. space in the Fan. (BizSense file)
KavaClub, a fledgling Fan bar that wants to serve the trendy Polynesian drink kava, has hit yet another legal roadblock.
The business on Tuesday was denied in its request for a temporary injunction that would have allowed it to open for business at 1529 W. Main St. while its legal battle with the Virginia Department of Health plays out.
The ruling by Richmond Circuit Court Judge W. Reilly Marchant leaves KavaClub and founder Fred Bryant in continued regulatory limbo, which began shortly after it announced its plans to open at the beginning of the year.
VDH denied KavaClub’s operating permit because kava – a non-alcoholic yet psychoactive drink – hasn’t been approved by the Food and Drug Administration and has been linked with severe liver injury. KavaClub’s offerings are also planned to include the ingredient kratom, which faces similar regulatory questions from VDH.
Kava’s origins are in Polynesia, where it’s been drunk for thousands of years, providing users feelings of relaxation and mild euphoria. There are kava bars in other states, but none in Virginia.
KavaClub appealed VDH’s permit denial in the spring and that process is ongoing. Last month the bar took the matter to Richmond Circuit Court when it filed a motion seeking a temporary injunction that would award KavaClub its operating permit in the interim.
At Tuesday’s injunction hearing, Marchant denied the request after listening to arguments from attorneys for both KavaClub and the state.
Marchant said he felt it would be reckless for the court to allow KavaClub to open before a full hearing of its appeal is held.
“You’re asking me to jump the whole case,” Marchant said to KavaClub’s attorneys Dale Mullen and Michael Brady of Whiteford, Taylor & Preston.
Brady and Mullen argued that injunctive relief was necessary in order to prevent irreparable damage to the business, and that KavaClub’s request was eligible for injunctive relief because it would preserve existing rights of the bar.
Marchant disagreed that there was any right to operate that was eligible to be preserved.
“You don’t have that right because you’ve never been permitted,” Marchant said. “You’re asking for me to create rights.”
Marchant, who himself once co-owned downtown restaurant Pasture, said he understood the difficulties of the industry but that it would set a dangerous precedent if the court were to grant KavaClub an operating permit.
“To ask the court to reverse the decision of the administrative agencies…the standard is extremely high,” Marchant said. “The court would be on very flimsy ground to support that.”
Bryant, a local entrepreneur who founded investment tech firm WealthForge, said he wasn’t surprised by Tuesday’s ruling. He said his ire is directed at Gov. Glenn Youngkin and his administration, whose agencies Bryant said have stood in the way of him opening his business.
“This is not something that should be handled by the judicial branches. It’s an executive branch matter where you have unelected bureaucrats who have control over a permanent process,” Bryant said in an interview Tuesday after the hearing.
“We’re pursuing avenues to everything we can on the judicial side, but at the core of it, it’s a lack of leadership from the executive branch.”
Defendants named in KavaClub’s motion are the state’s Department and Board of Health and the Health Commissioner, as well as the Richmond District’s health director. Assistant Attorney General of Virginia Eric Lansing represented the defendants at Tuesday’s hearing.
Spokespeople for the Attorney General’s office didn’t respond to a request for comment Tuesday afternoon.
At the end of Tuesday’s hearing, the attorneys for both parties said that they haven’t yet set a date for KavaClub’s appeal hearing, which would be the next step in the process.
The bar has been trying to open in the former Canon & Draw Brewing Co. space in the Fan. (BizSense file)
KavaClub, a fledgling Fan bar that wants to serve the trendy Polynesian drink kava, has hit yet another legal roadblock.
The business on Tuesday was denied in its request for a temporary injunction that would have allowed it to open for business at 1529 W. Main St. while its legal battle with the Virginia Department of Health plays out.
The ruling by Richmond Circuit Court Judge W. Reilly Marchant leaves KavaClub and founder Fred Bryant in continued regulatory limbo, which began shortly after it announced its plans to open at the beginning of the year.
VDH denied KavaClub’s operating permit because kava – a non-alcoholic yet psychoactive drink – hasn’t been approved by the Food and Drug Administration and has been linked with severe liver injury. KavaClub’s offerings are also planned to include the ingredient kratom, which faces similar regulatory questions from VDH.
Kava’s origins are in Polynesia, where it’s been drunk for thousands of years, providing users feelings of relaxation and mild euphoria. There are kava bars in other states, but none in Virginia.
KavaClub appealed VDH’s permit denial in the spring and that process is ongoing. Last month the bar took the matter to Richmond Circuit Court when it filed a motion seeking a temporary injunction that would award KavaClub its operating permit in the interim.
At Tuesday’s injunction hearing, Marchant denied the request after listening to arguments from attorneys for both KavaClub and the state.
Marchant said he felt it would be reckless for the court to allow KavaClub to open before a full hearing of its appeal is held.
“You’re asking me to jump the whole case,” Marchant said to KavaClub’s attorneys Dale Mullen and Michael Brady of Whiteford, Taylor & Preston.
Brady and Mullen argued that injunctive relief was necessary in order to prevent irreparable damage to the business, and that KavaClub’s request was eligible for injunctive relief because it would preserve existing rights of the bar.
Marchant disagreed that there was any right to operate that was eligible to be preserved.
“You don’t have that right because you’ve never been permitted,” Marchant said. “You’re asking for me to create rights.”
Marchant, who himself once co-owned downtown restaurant Pasture, said he understood the difficulties of the industry but that it would set a dangerous precedent if the court were to grant KavaClub an operating permit.
“To ask the court to reverse the decision of the administrative agencies…the standard is extremely high,” Marchant said. “The court would be on very flimsy ground to support that.”
Bryant, a local entrepreneur who founded investment tech firm WealthForge, said he wasn’t surprised by Tuesday’s ruling. He said his ire is directed at Gov. Glenn Youngkin and his administration, whose agencies Bryant said have stood in the way of him opening his business.
“This is not something that should be handled by the judicial branches. It’s an executive branch matter where you have unelected bureaucrats who have control over a permanent process,” Bryant said in an interview Tuesday after the hearing.
“We’re pursuing avenues to everything we can on the judicial side, but at the core of it, it’s a lack of leadership from the executive branch.”
Defendants named in KavaClub’s motion are the state’s Department and Board of Health and the Health Commissioner, as well as the Richmond District’s health director. Assistant Attorney General of Virginia Eric Lansing represented the defendants at Tuesday’s hearing.
Spokespeople for the Attorney General’s office didn’t respond to a request for comment Tuesday afternoon.
At the end of Tuesday’s hearing, the attorneys for both parties said that they haven’t yet set a date for KavaClub’s appeal hearing, which would be the next step in the process.
It sounds like the process is being followed correctly and that the owners did not do their homework before assuming that they could open this business. The Judge makes perfect sense and his reasoning is sound.
Hey Liz,
I have done a lot of research and I’m happy to share the facts around the process to answer any other questions you may have. If you’re interested please reach out to me.
Best,
Fred
I’d love to try the beverage one day. Sounds great. But how does this guy make the leap to blame Governor Youngkin? You lose all credibility when you make a statement that’s so silly and foolish.
You can not like the process all you want. But that dislike doesn’t make you above the law. The arrogance on the part of the owner here is as bad as Stoney circumventing the voters and forcing another vote on the casino despite the fact that the people have already spoken.
You have hit so many nails right on the head!
Hey Michael,
Thanks for your interest. I’m happy to share more of process with you if you’d like to be informed. Obviously there are many more facts and discussions that you aren’t privy to. I’m well aware of the process and the rules and have followed them to a T. I have the professionally done research to support it spanning back well over a year.
I’m happy to discuss further if this is something that energizes you. Feel free to reach out.
Best,
Fred
Fred, you did not answer Michael’s question – how is the governor to blame for your situation?
Thank you for being tough enough to draw attention to this.
But the casino will save the children Michael, abolish poverty and bring world peace.
Bring “Equity” to the masses, stamp out Capitalism, even!!
I have done absolutely zero research on Kava and I certainly don’t have a position one way or the other, but I do have to ask: isn’t alcohol also linked to severe liver injury?
There’s a regulatory process for both the production and sale of alcohol. There is none for this product.
Thank you Chris for pointing this out. I would also like to point out, as a long term fan of alcohol (but also someone who had an alcoholic parent) that it has long been clear that human life would be better WITHOUT alcohol but that the US government had to conceed that abolition was (even though it is never talked about that it WAS working and doing good for the first couple of years, until organized crime built up enough resources and power) ….. doing more harm than good. So what we have had is an ugly compromise of regulation… Read more »
I don’t know much about Kava, but a coworker of mine spent 30 days in rehab for Kratom about 4 years ago. Nasty withdrawal like opioids. The addiction was also keeping him in debt. Do we want this guy selling this stuff to our kids? I do not see the Kava Klub benefitting society. I see the pain and sadness it will bring.
Kids aren’t allowed to drink in bars.
Anyone is allowed in this “bar”.
Hey Macon, Thanks for your interest. It seems like you’re very energized by this topic, but also ill-informed on the science and facts. The safety and law of this matter is cut and dry but also too complex to capture in one article or the comments section. If you’d like, my team and I are happy to educate you. I have a 37 page product document that will clearly answer any questions you have and a 100 page safety and legal document that should answer the rest. If you have any more I also have a massive stash of peer… Read more »
Jay, The comment in the article regarding linked to severe liver injury was removed. I’m happy to send you the study I shared with Bizsense to clarify that. The study I’m referencing was sponsored by the governments of Kava exporting countries to attempt to factually and scientifically correct the record. There was one study in Germany completed in the early 2000’s that linked Kava to liver damage, this study was later proven by multiple sources to have errors of fact and science that rendered the conclusions null. The study I’m referencing was put together to clarify, dispel the errors of… Read more »
If this is the case with Kava (by the way, it’s sold in tea form at the grocery store), how are stores getting away with selling Delta 8?
They are not mixing delta 8 into a food/drink items they serve to you. You can buy kratom at a gas station, but a restaurant cannot use it as an ingredient. “Nutritional supplements” are in a grey area.
Hey Kathleen+Macon, Delta 8 is expressly illegal in VA as of July 1. Stores are getting away with Delta 8 because HHS and it’s subordinate agencies are failing to enforce that law in spite of it being openly flaunted by most head shops and many gas stations in the Commonwealth. Per Federal law and mirrored in VA statute, nutritional supplements are regulated as a food. On a factual basis there is no gray area. I can share the statues with you and I even have a visual, reach out if you’d like a copy. There is no argument as to… Read more »
Fred, you hit the nail on the head – yes Delta 8 is illegal, but no one is enforcing. the Virginia GA pats themselves on the back to bring in laws, but big deal – no one enforces. I am curious as to why the regulators came down on you? – is this revenge from an ex employee? Who would contact and sic the regulators on you? I don’t have a dog in this fight – I’m just curious.
Victoria,
Great point. All I have on that point is speculation because VDH will not engage with me, and I’d prefer not to speculate so publicly on things I don’t have a basis of solid knowledge for.
If you email me I’m happy to share some thoughts in a private setting. [email protected]
Have a great weekend,
Fred
Good response!
You got THAT right —- any casual observer of the supplement industry would get the impression that there should be much more regulation. Yet, the good thing is that if something GOOD is discovered, it is easy to get it out there…. it is much like the Patent Medicine era.
I don’t know enough to judge the merits of these arguments but t’s ALMOST refreshing to hear someone complain about REPUBLICANS and bureaucratic regulatory overreach for a change, whether this is actually going on or not. But, knowing Richmond politics, I wouldn’t be surprised if this wasn’t some form of a person saying that someone who was blocking them was “possessed by the Devil” or a “Nazi sympathizer” or some such quasi-religious invocation. I don’t know jack about Kava, but if it causes both mild euphoria AND liver damage, it only makes sense to assume that it needs regulation. One… Read more »